ARMAN AZAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 122/2023, [2023] HKCA 834

On Appeal From [2023] HKCFI 1005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 122 OF 2023

(ON APPEAL FROM HCAL NO 782 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) dated 20 April 2023 refusing the applicant leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 5 March 2019, which dismissed the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 29 January 2015 and 1 June 2017 respectively rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Pakistan, born in 1985. He was arrested by the police for illegally remaining in Hong Kong on 7 May 2007. He raised a non-refoulement claim by written representation dated 28 December 2007. His claim was based on the fear that if he returned to Pakistan, he would be harmed or even killed by (i) Muttahida majlis-e-Amal as he had broken the Islamic law, and (ii) the family of his lover, Hennah, as she had committed suicide after she was forced to marry another man, and that he would be arrested by the police as Hennah’s family had filed a complaint of kidnapping against him. The details of his claim are set out in paragraphs 4 to 20 of the Board’s decision.

3.  The applicant’s claim was initially assessed by the Director with reference to three relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] and torture risk.[3] By notice of decision dated 29 January 2015, the Director rejected the applicant’s claim. In April 2017, the applicant was invited to submit additional facts relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk.[4] The applicant did not submit any additional materials. By notice of decision dated 1 June 2017, the Director rejected the applicant’s claim with respect to BOR 2 risk as well.

4.  The applicant appealed to the Board. The Board held a hearing on 6 April 2016 and 29 November 2018 at which the applicant gave evidence. In its written decision dated 5 March 2019, the Board made these findings as summarised by the Judge at paragraph 11 of the CALL-1 form:

“ 11. Having considered the evidence, the Board made the following findings. It found that Hennah’s family did not attempt to locate the applicant while he was away from the home village [29]; that Hennah’s family did not resort to honor killing against her but only asked her to marry another man [30]; that, since Hennah had gone home and the police did not actively look for the applicant, it was unlikely that the alleged kidnapping complaint was an on-going investigation [31]; that there was no evidence suggesting that Hennah’s family was well connected [32]; that, since Hennah’s death, there was no reason that MMA would pursue the applicant [33]; that the applicant could relocate to other areas safely [35]; and that it had been almost 12 years since their elope, which showed that it would be unlikely that it was still an on-going concern [36].”

5.  In other words, the Board considered that even if the applicant might have entertained a subjective fear of harm, the evidence did not support a well-founded fear of harm flowing from a 12-year-old elopement incident involving two consenting adults. The Board also considered that the applicant could safely relocate to other parts of Pakistan beyond the Gujranwala district. Accordingly, the Board dismissed the applicant’s appeal and confirmed the Director’s decisions.

The Judge’s decision

6.  On 20 March 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. He did not set out any ground for judicial review in the Form 86 and in the accompanying affirmation all he stated was that the Board’s decision was not reasonable.

7.  On the basis of consideration of the papers alone, the Judge gave his decision in writing on 20 April 2023, dismissing the application for leave to apply for judicial review. His reasons are stated in [15] to [20] of the Form CALL-1 as follows:

“ 15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …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.’

18. The Board had assessed his case and did not accept that there will be any real risk for him to return to his country. The ground in paragraph 14 is only his personal opinion. There is no valid reason from the applicant to challenge the Board’s Decision.

19. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

The appeal to this Court

8.  By notice of appeal filed on 27 April 2023, the applicant appeals against the Judge’s decision. In that document the applicant stated that the Board’s decision and the Judge’s judgment had no difference, and that the court did not consider any error of the Board. At the same time as the filing of the notice of appeal, the applicant gave his written consent for the appeal to be disposed of on paper by the court without an oral hearing.

9.  In his written submissions lodged on 18 May 2023, the applicant reiterated the facts that formed the basis of his non-refoulement claim but did not set out any intelligible grounds of appeal against the Judge’s decision.

10.  Having reviewed the documents, we consider it appropriate to determine the appeal on the basis of the documents available.

Discussion

11.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board or the Director. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board or the Director afresh as if the appeal were a fresh application for judicial review.

12.  In the present case, the Board dismissed the applicant’s appeal on the basis of its findings that there would be no real risk to the applicant upon refoulement. Among other things it found that internal relocation was an option reasonably open to the applicant even if the risks he alleged actually existed. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant had wholly failed to identify any public law defect that vitiated the Board’s decision. Nor could the Judge see any reasonably arguable basis for challenging the Board’s decision.

13.  The applicant has also been wholly unable to point concretely to any error in the decision of the Judge.

14.  The applicant’s appeal is accordingly dismissed.