TUFAIL ASAM alias ASIM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 290/2023，[2024] HKCA 16

On Appeal From [2023] HKCFI 2240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 290 OF 2023

(ON APPEAL FROM HCAL NO 1149 OF 2019)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  This is an appeal by the Applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 7 September 2023, by which the Deputy Judge refused the Applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 2240).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 8 April 2019 (“the Board’s Decision”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 24 April 2017 rejecting the Applicant’s non-refoulement claim (“the Director’s Decision”).

3.  We heard the appeal on 5 December 2023. After the hearing, we reserved our judgment to be handed down in writing. This is what we do now.

Background

4.  The Applicant is a national of Pakistan. He was previously deported back to Pakistan from Hong Kong on 30 October 2001 and last entered Hong Kong illegally in late December 2014. On 4 January 2015, he was arrested by the police for breach of the deportation order. On 11 November 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by Faheem Nawaz (“FN”), Khawaja Muhammad Asif (“KMA”), and people from the Pakistan Muslim League (Nawaz) (“PML(N)”) because he shifted his support to Pakistan Tehreek-e-Insaf (“PTI”). Factual details of the Applicant’s claim were concisely summarised by the Deputy Judge at [4] to [6] of the Leave Decision.

5.  By the Director’s Decision, the Director rejected the Applicant’s non‑refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

6.  The Applicant then appealed against the Director’s Decision to the Board. He attended an oral hearing before the Board on 1 August 2018 with legal representation. In essence, after considering the evidence, the Board had serious concerns about the Applicant’s credibility. The Board noted that the Applicant had two passports using different names and attempted to fraudulently use a passport not belonging to him in another identity. The Board also observed that the Applicant’s answers as to his political knowledge were not persuasive enough to support a claim that he was actively involved and committed to the PTI. The Board also rejected his claim as to his brother’s death as it lacked documentary proof and his evidence was inconsistent. The Board also refused to accept that his brother died as a consequence of being poisoned by his political opponents in the PML(N). After considering the evidence, the Board found that the Applicant would not face any real or substantial risk of harm upon refoulement. Further, the Country of Origin Information (“COI”) showed that the PML(N) lost the election in 2018 and the PTI was in power. It was mere speculation that FN would take revenge against the Applicant. In any event, state protection would be available to the Applicant. Accordingly, the Applicant’s claim failed on all applicable grounds and his appeal was dismissed by the Board.

The Leave Decision

7.  On 30 April 2019, the Applicant filed his Form 86 for leave to apply for judicial review against the Board’s Decision. As summarised at [17] of the Leave Decision, the Applicant, in his supporting affirmation, raised the following grounds of review against the Board’s Decision:

(1)  The Board had not taken his unique situation into account fairly and sequentially.

(2)  In determining his Pakistan Passport issue as to whether Tufail Asam and Asim are the same person, the Board had failed to clarify this issue with the Embassy, or to obtain COI on this matter.

(3)  The Board, having agreed that the passport identity issue is unrelated to his claim, had, nevertheless consider his overall credibility of his evidence for his claim.

(4)  The Director had not made adverse finding on his credibility, the Board should not have made adverse finding on his credibility.

(5)  The Board should not have adverse finding in his credibility simply because he was unable to produce a death certificate of his brother’s death as he was away from Pakistan.

(6)  The Board had not taken into account that his brother was killed because of his political association with the PLM(N), and therefore since he had also done things for the party, he would also be the target of the rivalry party.

8.  The Deputy Judge heard the matter on 8 March 2023. The Applicant attended the oral hearing in person with the assistance of a Punjabi/Urdu interpreter.

9.  By the Leave Decision, the Deputy Judge refused to grant leave to the Applicant to apply for judicial review. His reasons were set out at [18] to [24] of the Leave Decision:

“18. 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).

19. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he just wants to stay in Hong Kong for a little bit longer because is situation is getting worse.

20. 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.’

21. As to the grounds in paragraph 17, ground (1) is his opinion without any evidence in support. The other grounds are the ways the Board had adopted to assess his evidence, which is within the Board’s province, with which the Court should not interfere as according to the Court of Appeal in Kartini. The applicant was legally represented before the Board. Such legal issues should have been taken care of by his legal representative at the hearing before the Board. In any event, the Board has founded that state protection is available to him and he has raised no objection to this finding. He is therefore not entitle to non-refoulement protection.

22. 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.

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

CONCLUSION

24. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

10.  On 19 September 2023, the Applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:

“… the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

11.  The Applicant lodged his skeleton submission on 31 October 2023. In those submissions, the Applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim. The Applicant further contended that the Board failed to scrutinise the Director’s decision or to consider matters such as the country conditions of the Applicant’s country of origin. He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly. It is noted that these are all general propositions and the Applicant has failed to show specifically how they are relevant to his case. Importantly, none of his submissions have identified any error in the Leave Decision.

12.  We heard the appeal on 5 December 2023. An Urdu interpreter was present to provide language assistance. At the hearing, the Applicant claimed the risk of his life has increased.

Discussion

13.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  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’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.

15.  At the outset, all of the Applicant’s allegations are vague, bare contentions. Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the Applicant identify with particulars how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, his submissions are plainly not proper grounds of appeal. On this basis alone, his appeal must fail.

16.  Further, general assertions of his fear of hardship if refouled do not constitute proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28]. More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and therector) as primary decision makers. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11]. The Deputy Judge correctly did not find any valid ground to challenge the Board’s Decision. There is no basis for us to interfere with the Leave Decision.

17.  For the above reasons, the Applicant’s appeal has no merits and we dismiss the appeal.