ARSHAD MUHAMMAD ALIAS FAISAL ALIAS MUHAMMAD FAISAL v. TORTURE CLAIMS APPEAL BOARD

CACV 14/2022

[2022] HKCA 563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 14 OF 2022

(ON APPEAL FROM HCAL 660 OF 2021)

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J U D G M E N T

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

1.  This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“the Judge”) on 30 December 2021refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 17 March 2021. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 18 July 2017.

2.  The Applicant has not filed any skeleton argument in support of the appeal despite paragraph 3 of the directions of the Registrar of Civil Appeals contained in a letter dated 10 February 2022 to the Applicant. Accordingly, the Applicant is deemed to have waived his right for an oral hearing and elected to have his appeal disposed of on paper, and the present appeal is determined on the basis of the written materials before this court, as stated in paragraph 4 of the said letter.

BACKGROUND

3.  The Applicant is a national of Pakistan. He first arrived in Hong Kong on 30 June 2001 as a visitor under a different name and subsequently overstayed. He was arrested by police on 30 October 2002 and then repatriated to Pakistan on 13 November 2002. On 24 February 2009, he again sneaked into Hong Kong from China and was arrested by police on the same day. After he had been referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he returned to Pakistan he would be harmed or killed by members of the political party Muttahida Qaumi Movement (“MQM”) and / or by the police as his brother was a member of a rival political party, namely Pakistan Peoples Party (“PPP”). After his torture claim had been rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim. Details of the Applicant’s claim was summarised by the Judge at paragraphs 1 ‑ 5 of the CALL-1 Form.

4.  Having previously rejected the Applicant’s claim on the risk of torture[1], by a Notice of Decision dated 18 July 2017, the Director dismissed the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

5.  On 7 August 2017, the Applicant appealed the Director’s decision. Despite the Board found the appeal to have been filed a few days late, its late filing was allowed. The Applicant attended three oral hearings with his lawyer from the Duty Lawyer Service (“DLS”) on 15 November 2018, 18 June 2019 and 29 June 2020 before the Board. On 17 March 2021, the Board dismissed the Applicant’s appeal, confirming the Director’s decision (“the Board’s Decision”).

6.  The Board accepted the Applicant’s claim of past involvements in the political rivalry between MQM and PPP, that the police were looking for his brother as a local political leader, that his father had subsequently died under unknown circumstances, and that he had suffered an eye injury in an incident in his home district and for which he had been seeking treatments in Hong Kong. However, the Board found that it was the Applicant’s brother who was the true target of the police and the police had no further interest in the Applicant after his brother had disappeared. Further, the Board not only found the Applicant’s claimed fear of harm was based entirely on suspicions only, it was of also the view that in any case there should no longer be any risk as relevant Country of Origin Information (“COI”) showed that, since the Applicant’s first repatriation from Hong Kong back to Pakistan in 2002, PPP has replaced MQM as the ruling party in the provincial assembly of his hometown. The Board concluded that the Applicant will not face any real risk of any proscribed harm from supporters of any political party, the Pakistani police or the authorities upon his return to Pakistan, and therefore his claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

7.  On 10 May 2021, the Applicant filed his Form 86 against the Board’s Decision. In his affirmation in support of his application, he put forward various complaints as grounds for his intended challenge which can be summarized as follows[5]:

(1)  the Board made its decision by relying on COI only based on online research which were not true according to the real situation in Pakistan which can only be verified by real investigation done for collecting the real data on the country;

(2)  the Board failed to properly recognize that the political issues in Pakistan have always been a big problem for the common people like the Applicant due to the corrupt political system where justice cannot be obtained unless with bribes; and

(3)  the Board failed to give the Applicant further opportunity by way of oral hearing to present his case.

8.  The Judge found that the Applicant’s grounds were just broad and vague assertions containing several keywords and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how would corruptions in the political system in Pakistan be relevant to his case.

9.  The Judge noted that the Applicant had been given three oral hearings for his appeal before the Board and was given every opportunity to present and argue his claim but he failed to do so throughout the entire process while being represented by his lawyer from the Duty Lawyer Scheme. The Judge noted that the Applicant failed to clearly and properly identify any error or irrationality or procedural unfairness in his process before the Board or in its decision. As a result, the Judge did not find any of his grounds reasonably arguable for his intended application and observed that his request to remain in Hong Kong so as to continue to receive medical treatments for his injured eye cannot be accepted[6].

10.  Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed the Applicant’s leave application.

THIS APPEAL

11.  In his Notice of Appeal dated 6 January 2022, the Applicant requested for an order to set aside the Order dated 30 December 2021. The Applicant stated his grounds of his appeal as follows:

(1)  The Judge had failed to consider all applicable grounds of non-refoulement claims and in particular, non-refoulement on the grounds of risk of violation of Articles 2 and 22 of the Hong Kong Bill of Rights Ordinance[7];

(2)  The Judge was wrong in accepting the Adjudicator’s finding that “the only fact established is that the Applicant is a Pakistani male, he faces no risk of any harm at all” to conclude that the persecution risk failed; and

(3)  The findings by the Judge that the Adjudicator’s decision to be without fault were irrational.

DISCUSSION

12.  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. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

13.  As regards Ground 1 raised by the Applicant, clearly the Board had considered all applicable grounds for a non-refoulement claim and the Judge had demonstrated that he had considered the decisions of the Director and the Board with rigorous examination and anxious scrutiny[8]. Due regard had been given to the right to life as provided in Article 2 of the Bill of Rights. The Applicant mentioned Article 22 of the Bill of Rights which concerns equality before and equal protection of law. However, the Applicant did not state in what way the Judge had failed to observe this Article and we did not find he had.

14.  As regards Ground 2, the Adjudicator did not make the alleged finding and there was no acceptance by the Judge of such finding as alleged.

15.  As regards Ground 3, the Applicant only makes bare assertion that the Judge’s findings were irrational without providing any supporting evidence or even detailed particulars in the allegation.

16.  The Applicant has not pointed to any specific errors in the Judge’s decision dated 30 December 2021, or raised any viable grounds of appeal against the Judge’s decision in his Notice of Appeal.

17.  We have considered the Judge’s decision and the reasons he gave in the Form CALL-1. We agree with the Judge’s observations that the applicant’s case is not reasonably arguable, there is no realistic prospect of success and leave to apply for judicial review should be refused.

DISPOSITION

18.  For the reasons we have given above, we conclude that there is no merit in the appeal. Accordingly, we dismiss this appeal.