AMIR MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 76/2023, [2023] HKCA 794

On appeal from [2023] HKCFI 674

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 76 OF 2023

(ON APPEAL FROM HCAL NO 1190 OF 2022)

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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 3 March 2023, Deputy High Court Judge To refused an extension of time for leave for the applicant to seek judicial review (“the Judge’s Decision”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 9 October 2020 (“the Board’s Decision”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the Judge’s Decision on 14 March 2023. He consented to the disposal of this appeal on paper by the court without an oral hearing.

2.  The applicant is a national of Pakistan. He is 32 years old. He entered Hong Kong illegally via Mainland China on 8 April 2014. He surrendered to the Immigration Department on 28 April 2014 and, on the same day, lodge a non-refoulement claim. He requested to withdraw his claim on 13 December 2016. However, he raised a non-refoulement claim again on the same basis on 20 January 2017. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Pakistan Muslim League (Nawaz) (“PML(N)”) as he supported a rival political party, namely the Pakistan Muslim League Quaid-e-Azam (“PML(Q)”).

The Director’s decision

3.  By a Notice of Decision dated 21 November 2018 (“Notice of Decision”), the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director held that the applicant’s alleged risk of harm was of low intensity and frequency. The Director found that the applicant’s injuries allegedly caused by the attackers belonging to the PML(N) did not attain a minimum level of severity. The Director was also of the view that the applicant’s dispute with the PML(N) was localised and private in nature due to different political opinions. In any event, the applicant did not hold any position in the PML(Q) and was a low level supporter only, which undermined his claim that the entire PML(N) would look for him or even kill him if he returns to Pakistan. The Director held that on the basis of objective and credible Country of Origin Information, the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant appealed against the Director’s decision to the Board. The Board scheduled a hearing on 18 June 2020 but the applicant failed to attend. The Duty Lawyer Service (“DLS”), who appeared on behalf of the applicant at the hearing, informed the Board that they were unable to locate the applicant. The Board then made several attempts to ensure that the applicant was given an opportunity to explain his absence. However, no response was forthcoming. Hence, the Board proceeded to determine the applicant’s appeal on the basis of the materials before it.

6.  The Board held that the applicant’s claim of being harmed or killed by the PML(N) was unconvincing or inherently improbable given that he was just a supporter of the PML(Q) at the local level only and did not hold any position. The Board further held that even if the applicant’s case was accepted, his dispute with the PML(N) was private in nature. Having considered the totality of evidence, the Board found that he failed to show a real risk of harm if refouled to Pakistan and there was no evidence to show that the alleged ill treatment had attained the requisite severity. Thus, the Board rejected the appeal on 9 October 2020 and affirmed the Director’s Notice of Decision dated 21 November 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 2 November 2022 to seek leave to apply for judicial review. Upon clarification at the hearing before the judge on 20 February 2023, the applicant confirmed that he was seeking leave to apply for judicial review of the Board’s Decision not the Notice of Decision and the Form 86 was amended accordingly. The Form 86 and the affirmation in support did not provide any ground at all in support of his application.

The judge’s decision

8.  Whilst noting that the delay of almost 25 months to seek leave for judicial review was very substantial, the judge nevertheless proceeded to assess the prospect of success in the proposed judicial review for the sake of completeness. Having reviewed the Board’s Decision with rigorous examination and anxious scrutiny, the judge was unable to find any error of law or procedural unfairness of the Board. The judge further held that the Board’s Decision was not Wednesbury unreasonable or irrational, and came to the view that the decision was in fact without fault. Therefore, the judge concluded that there is no prospect of success in the intended judicial review and refused the leave application on 3 March 2023.

Grounds of appeal

9.  In the Notice of Appeal filed on 14 March 2023, the applicant stated that he is not satisfied with the Judge’s Decision because it is “away form [sic] facts and reality which are related to [his] case” and complained there is “no any [sic] transparency” in the Judge’s Decision. No particular grounds for challenging the decision were provided.

10.  As for the written submissions, the applicant asserted that so many things which are related to his case were ignored and this showed that all the decisions made against him were not “transparent”. There are lots of differences between the thinking in the Board’s Decision and the actual situation. He reiterated the problems he faced in his home country. He repeated his dissatisfaction with the Board’s Decision which did not correctly consider his case.

Legal Principles

11.  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.

12.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

13.  In the present appeal, the applicant failed to give any particulars, elaboration or evidence in support of his grounds of appeal. The Notice of Appeal and written submissions merely contain bare assertions without elaboration. The applicant also failed to identify any errors in the Judge’s Decision or failure to take account of relevant matters already placed before the court or that the decision was otherwise plainly wrong.

14.  As the appeal is wholly devoid of merits, we order that the appeal be dismissed.