RE ASIF MEHMOOD

CACV 380/2019

[2019] HKCA 1366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 380 OF 2019

(ON APPEAL FROM HCAL NO. 305 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 9 August 2019 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 9 February 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 28 August 2014 and 15 November 2016 rejecting his non-refoulement claim.    

2.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 17 March 2008.  He lodged a torture claim on 27 April 2010, which was assessed as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014. 

3.  The applicant’s claim is based on his fear of being forced to join the Jihadi groups and being harmed by their supporters.  His case was set out in details in [6] of the decision of the Director’s first decision and summarised by the Judge in [2] to [7] of the Form CALL-1 dated 9 August 2019, [2019] HKCFI 1975.  

4.  The applicant’s case is that beginning in June 2000, the fundamentalist Muslims were giving him troubles as a result of his friendship with his Christian colleagues.  He was first asked to join a jihadi group called Jaish-e-Mohammed, and later to join another group called Sipah-e-Sahaba (“SSP”).  After he turned down the requests, he was assaulted and in March/April 2001 abducted by the SSP people and taken to a fighter-training camp.  He managed to escape after a fortnight, but was again abducted and taken to a training camp in December 2001.  After three weeks, the SSP people abandoned him, and he went home. In around mid-2002, he was forced to follow the Tehrik-i-Taliban Pakistan (“TTP”) group, and taken to a training camp to learn how to make bombs and use weapons.  He managed to escape after two months.  He went to live with his friend, worked in another part of Pakistan and then went to Oman to work.  In mid-2006 after he returned to Pakistan, he ran into the TTP people, and they fired gunshot at him.  Fearing for his safety, he left Pakistan for mainland China in July 2007, and eventually sneaked into Hong Kong.       

5.  By the decision dated 28 August 2014, the Director rejected the applicant’s claim having regard to the torture risk[1], persecution risk[2], and BOR 3 risk[3] grounds.  

6.  On 18 September 2014, the applicant filed with the Board an appeal against the Director’s decision.  As this was an out of time appeal, the Board did not conduct any hearing, and determined the appeal on paper.  By its decision dated 7 October 2014, the Board dismissed the appeal.  The Board noted that no good reason for the delay had been provided.  It also found the applicant’s claim incredible, and further considered that, in any event, internal relocation was reasonably available. 

7.  The applicant applied for, and was given, leave to judicially review the Board’s decision (HCAL 37/2015).  On 17 August 2016, Deputy High Court Judge Wilson Chan (as Wilson J then was) dismissed his judicial review application.  There was no appeal from this decision.

8.  By his further decision dated 15 November 2016, the Director rejected the applicant’s claim under the BOR 2 risk[4] ground.  The applicant appealed against the decision to the Board, which held a hearing on 31 January 2018.  By its decision dated 9 February 2018, the Board dismissed the appeal as it considered the applicant’s case incredible and unreliable, and the claim did not come within the BOR 2 risk ground.

9.  On 27 February 2018, the applicant filed his Form 86 together with a supporting affirmation to seek leave to apply for judicial review against the decision of the Board.  The applicant relied on the following grounds for seeking relief:

(1)  The Director’s and the Board’s decisions were unfair and unreasonable. He did not have sufficient time and chance to arrange relevant evidence to support his appeal to the Board.

(2)  He is a genuine non-refoulement claimant.  He would face torture and might be killed if he were refouled to Pakistan.  There was no safe place for him in his country as the Jihadi groups were powerful and could track him down no matter where he went to hide.

10.  At the applicant’s request, the Judge heard the leave application at two hearings held on 14 and 21 September 2018.  By the Form CALL-1 dated 9 August 2019, [2019] HKCFI 1975, the Judge refused to give leave to the applicant to apply for judicial review.  He considered the intended judicial review was not reasonably arguable and had no realistic prospect of success.  The Judge gave his reasons at [47] to [51] as follows:

“47. The Applicant complained the Adjudicator did not give him sufficient time and chance to arrange evidence for the appeal hearing. He failed to give specifics. In court, the Applicant confirmed he had submitted in the screening process all the proof he had.

48. The Applicant said the Adjudicator’s decision (2018) was not reasonable or fair. His complaint was vague. He merely maintained he faced life risk (BOR2 risk) and would be killed by the jihadi groups.

49. The Adjudicator noted the Applicant had added a new allegation that he was gang-raped in Pakistan. However, he could not provide details. The Applicant explained to the Adjudicator that he had withheld this fact from the Director and only disclosed it in his recent Notice of Appeal because he felt embarrassed. The Adjudicator did not accept such explanation. He did not believe the Applicant's claim of BOR 2 risk.

50. The screening process in the Applicant's case involved different stages spanning through years. The Applicant had every opportunity to state in time his predicament in Pakistan. Having been gang-raped no doubt would be an important feature of his claim. Yet, the Applicant did not mention it until he appealed in November 2016 against the Director's 2016 decision on BOR 2 risk. The Adjudicator was entitled to find the Applicant incredible and thus rejected his claim.

51. I have reviewed the Adjudicator’s 2018 decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered the high standards of fairness required of the Applicant’s non-refoulement claim.”

11.  The applicant filed a notice of appeal on 16 August 2019, in which the applicant stated that the Director and the Board did not realise or weight the gravity of his circumstances when considering his non-refoulement claim, and that he should be given an opportunity to plead his case properly. 

12.  In his written submission, the applicant referred to ST v Betty Kwan[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.  He argued that the high standard of fairness was engaged because his life and limb and his fundamental human right not to be subjected to torture are involved, and the decision had the effect of finally disposing of his claim.          

13.  We heard the appeal on 3 December 2019.  At the hearing, the applicant did not have anything to add, other than asking the court to reconsider his case.

14.  We are of the view that the matters stated in the notice of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for his decision.  With regard to his complaint that the Director and the Board failed to properly consider his situation, the Judge had given it careful consideration and had explained in his decision why it was not accepted.  As for the written submission, it only set out general legal principles and unspecific assertions without showing how they are relevant to the applicant’s case.         

15.  For the above reasons, we are of the view that the appeal has no merit.  Accordingly, we dismiss the appeal.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.

[5] Incorrectly cited as ST v Director of Immigration.