MUHAMMAD NASEER v. TORTURE CLAIMS APPEAL BOARD

CACV 326 /2023, [2024] HKCA 134

On appeal from [2023] HKCFI 2533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 326 OF 2023

(ON APPEAL FROM HCAL NO 200 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 5 October 2023, by way of a Form CALL-1 ([2023] HKCFI 2533), Deputy High Court Judge Bruno Chan (“Judge”) refused to grant leave for the applicant to apply for judicial review. The intended judicial review sought to quash the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) rejecting his non‑refoulement protection claim. The applicant filed a notice of appeal against the Judge’s decision on 17 October 2023.

2.  The applicant is a Pakistani national born in 1975. He entered Hong Kong on 7 May 2000 and was allowed to stay as a visitor until 20 May 2000. He did not depart within the limit of stay and has been overstaying in Hong Kong since 21 May 2000. He was arrested by the police 6 years later, on 26 June 2006. In the same year, he raised a torture claim[1] which was rejected by the Director of Immigration (“Director”) on 18 May 2012. His petition against such rejection also failed on 13 July 2012. On 20 June 2013, he raised a non-refoulement claim (“NRC”) based on broadly similar factual basis which was subsequently processed under the Unified Screening Mechanism (“USM”).

3.  The basis of his NRC is that he will be harmed or killed by a paternal cousin, known as Najab, over a dispute concerning entitlement to some lands if he returns to Pakistan. The applicant claimed that he was beaten up by Najab and his associates, and then by the police (which he suspected to have acted upon Najab’s influence) in 2000. He then fled to Hong Kong in fear of his safety.

The decision of the Director

4.  As the applicant’s torture claim had already been rejected, his NRC was assessed under the USM on BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. By a Notice of Decision dated 9 June 2017, the Director rejected the applicant’s claim.

5.  The Director concluded that risk of harm from Najab (and his associates) upon the applicant’s return to Pakistan is unlikely to materialize. The intensity and frequency of past ill-treatment from Najab is low. His evidence, taken at the highest, was that there existed individual police officers who ill-treated him. There was no indication that the applicant was targeted by the Pakistani government. State protection would be available to lower or negate the level of risk. Internal relocation alternatives are also available which would further lower or negate the perceived risk. The Director did not accept that the applicant would face ill-treatment of the minimum level of severity necessary to establish his claim under any of the applicable grounds.

The decision of the Board

6.  The applicant appealed against the Director’s decision to the Board. The appeal was heard by the Board in an oral hearing which was held over the span of 3 days: 23 May 2018, 8 June 2018, and 10 August 2018. The applicant attended the hearing with a Pushto/English interpreter to give evidence and answer questions from the Board.

7.  The Board found the applicant to be a poor witness, having taken into account these matters: he only sought non-refoulement protection more than 6 years after he landed in Hong Kong; his failure to answer the Director’s written questions in processing his claim; his refusal to name material witnesses; he only disclosed some factual details for the first time in the hearing before the Board; the material inconsistencies in his account over time and the lack of details and specificity in his evidence. The Board was not persuaded, even to the low standard required, that the events in Pakistan as described by the applicant are factually accurate. The Board rejected the applicant’s NRC as not credible and did not consider there is a real risk of harm to him upon refoulement.

The intended judicial review and the Judge’s decision

8.  The applicant filed a Form 86 and an affirmation on 22 January 2019 to seek leave to apply for judicial review against the Board’s decision. The application was heard by the Judge on 12 September 2023. As before, the applicant appeared in person with a Pushto/English interpreter. The applicant told the Judge it was his “uncle” – rather than his paternal cousin – who would harm him if he returns to Pakistan. He did not add any proposed grounds other than what he had already stated in the supporting affirmation.

9.  The applicant’s proposed grounds as stated in the supporting affirmation have been summarized by the Judge in paragraph 10 of the Form CALL-1 dated 5 October 2023, which are as follows:

(1)  The adjudicator failed to apply high standards of fairness when the Board sought to challenge the applicant’s credibility without conducting any oral hearings and thereby failed to comply with its obligation of procedural fairness.

(2)  The adjudicator took account of irrelevant consideration in assessing the applicant’s claim and rendered a refusal decision.

(3)  The adjudicator after reviewing the case gave no proper reasons for the decision after having all the information he needed without a fair oral hearing.

(4)  The adjudicator failed to take into account all the country of origin information (“COI”) materials in the hearing bundle before rejecting the basis of the applicant’s claim and instead relied on source of news not officially recognized or were simply hearsay or outdated which resulted in making groundless speculations that there would be no risk for the applicant to return to his home country;

(5)  The adjudicator had done a “shoddy job”, was “inconsiderate” and had failed “miserably”.

10.  The Judge rejected the application after having considered the application’s proposed grounds of review. The main reasoning for refusing to grant leave is found in paragraph 11 of the Form CALL-1:

“These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to apply high standards of fairness or to give proper reasons for the decision, or how did the Adjudicator fail to take into account relevant COI or what source of news or COI were not officially recognized or were hearsay or outdated, while the complaint of no oral hearing for his appeal is simply factually incorrect as the record shows that the Applicant in fact attended not 1 but 3 oral hearings before the Board during which he was able to properly and fully present his case to the Adjudicator with the assistance of an interpreter without any problem. As such I do not find any of his proposed grounds reasonably arguable for his intended challenge.”

Grounds of appeal

11.  The grounds of appeal stated in the notice of appeal filed on 17 October 2023 may be summarised as follows:

(1)  The applicant will face hardship if he is to return to his home country.

(2)  The Board has relied on source of news which is not officially recognized, or is simply hearsay, or is outdated.

(3)  The Board made groundless speculations in the absence of credible source of information.

12.  In the skeleton submissions lodged by the applicant on 27 December 2023, he seeks to rely on 2 additional grounds of appeal:

(1)  Under the heading of “1^st Ground”, the applicant refers to various authorities which explain the high standard of fairness that a non-refoulement claimant is entitled to expect, without elaborating how those authorities could assist in his appeal. He argues that the Board has adopted the wrong approach, by trying to see whether it could “find fault with the decision of the Immigration Officer” rather than to rehear the matter. He also says the Board ought to have considered the conditions of the applicant’s country of origin, but without particularising the specific conditions in Pakistan which the Board is alleged to have failed to consider.

(2)  Under the heading of “2^nd Ground”, the applicant mentions there are minimum standards of procedural fairness in the decision-making process and that a decision-maker is under a duty to act fairly. But the applicant did not explain in what manner the Judge or the Board has failed to afford him the procedural fairness that he was entitled to.

13.  A notice of hearing was issued on 11 December 2023 that this appeal was scheduled to be heard on 30 January 2024 and was sent to the applicant by registered post. On 23 January 2024, the Director of Legal Aid filed a memorandum that the applicant has made an application for legal aid to prosecute this appeal. On 24 January 2024, this court ordered that the stay in respect of the application for legal aid be lifted and the hearing of this appeal would proceed on 30 January 2024 as scheduled, as there is no good reason for the belated application to seek legal aid.

Legal principles

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Discussion and disposition

17.  The applicant did not attend the hearing of the appeal on 30 January 2024. We proceeded with the appeal in his absence.

18.  The applicant’s grounds of appeal (as set out in both the notice of appeal and his written submissions) are but vague and general assertions against the Board’s decision (rather than the Judge’s decision which is the proper subject of this appeal). Those vague assertions, without being supported by particulars, details, or elaboration, do not merit serious consideration. The complaint against the Board’s use of COI or assessment of the conditions in the applicant’s country of origin has already been properly considered by the Judge.

19.  The applicant has failed to show that the Judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. Nor could we find any, having scrutinized the Board’s decision and the Judge’s decision.

20.  No viable ground has been put forward to reverse the decision of the judge. We therefore dismiss the applicant’s appeal.