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

CACV 426/2022

[2023] HKCA 222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 426 OF 2022

(ON APPEAL FROM HCAL 2466/2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 18 October 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 3197).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 18 October 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 February 2017 rejecting the applicant’s non-refoulement claim.

3.  We heard the appeal on 1 February 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 entered Hong Kong illegally on 20 February 2016 and was arrested by the police on the same date.  He was transferred to the Immigration Department on 21 February 2016, and thereafter raised a non-refoulement claim on 11 November 2016 on the basis that if he returned to Pakistan, he would be harmed or killed by one Haji Ali Bahadar and his associates from a rival political party in Pakistan.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] to [6] of the Leave Decision.

5.  By a Notice of Decision dated 27 February 2017 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim. The 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 the applicant’s non‑refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s Decision to the Board. The applicant attended the hearing on 31 August 2018.  Having assessed and considered the totality of the evidence, the Board considered that alleged risk of harm was low.  Alternatively, after considering the applicant’s case and the relevant Country of Origin information (“COI”), the Board considered that even if such risk of harm existed, state protection and suitable options of internal relocation in Pakistan would be available to the applicant.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 5 November 2018, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In his Form 86, the applicant did not set out any ground of review.  The applicant attempted to set out his grounds of review in his supporting affirmation, the claims stated therein were convoluted and were, as the Deputy Judge described (at [13] of the Leave Decision), “a jumble of legal authorities, legal principles and [legislation]”.  The Deputy Judge had summarised the applicant’s grounds as follows (at [13] of the Leave Decision):

“(1) No reasonable basis for rejecting his claim and credibility.

(2) Failing to consider the extended form of state acquiescence.

(3) Failing to consider the country of origin information reports in assessing risk.

(4) Irregularity: the decision maker being different person than the immigration officer; failing to consider relevant and not consider irrelevant materials; failing to consider a consistent system of human right violations; failing to consider state protection; and placing weight on irrelevant or inaccurate or incorrect matters.

(5) Procedural impropriety: failing to make investigation into the country of origin information on Pakistan; applying incorrect standard of proof; failing to call for psychological and/or psychiatric report for evaluation.”

8.  As the applicant did not request for an oral hearing, the Deputy Judge considered and determined his application on paper.

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 [14] to [20] of the Leave Decision:

“14. 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).

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

16. 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.”

17. The grounds in support of his application in paragraph 13 above do not assist him. Grounds (1), (2) and (3) are bare allegations without any evidence or specific. As to ground (4), the immigration officer is the primary fact finder whereas the adjudicator of the Board dealt with his appeal. The others are also his opinions without evidence in support. Ground (5) consists of unfounded allegations as the Board had referred to the COI. There was no complaint on the applicant’s psychology or psychiatry before the Board. To say that the Board applied the incorrect standard of proof is, again, his own opinion without any evidence.

18. 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.

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

CONCLUSION

20.  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 27 October 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In the Notice of Appeal, he stated, in gist, that he would “face hardship” if refouled, and that the Board had erroneously relied on “source of news which is not official recognised, or it is simply hearsay”.

11.  Pursuant to the directions made by the Registrar of Civil Appeals on 15 November 2022, the applicant lodged his written submissions on 4 January 2023. In those submissions, the applicant referred to the well-established principles in, inter alia, ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

12.  We heard the appeal on 1 February 2023.  An Urdu interpreter was present to provide language assistance.  During the hearing, the applicant sought an adjournment of the hearing in order to adduce unspecified documentary evidence in support of his appeal.  We decided not to allow an adjournment of the hearing on this basis, given that the applicant could not identify or provide particulars as to the nature of such documentary evidence, which he confirmed had not in any event been considered by the Director, the Board or the Deputy Judge.

13.  The applicant also sought to put into evidence copies of his marriage certificate and documentary proof concerning his wife’s medical condition.  The applicant submitted that he should not be refouled by reason of his wife’s medical condition.  On this occasion, we have exceptionally allowed the applicant to adduce these documents, which we have considered in reaching our conclusions below. 

Discussion

14.  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].

15.  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.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

16.  At the outset, most if not all of the applicant’s allegations are vague, bare contentions and without basis in or support by evidence.  Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars as to 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.

17.  Further, general assertions of the applicant’s fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28]. 

18.  The applicant has failed to particularise or identify, inter alia, the COI which the Board is said to have failed to consider, the alleged unreasonable basis on which the Board relied in rejecting his claim, and the relevant considerations which the Board had allegedly failed to take into account.

19.  In any event, 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 the Director) as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].

20.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his application by the Deputy Judge or in processing of his non-refoulement claim.

21.  The Deputy Judge, after rigorous examination and anxious scrutiny, could not find any error of law or procedural unfairness or reasonably arguable grounds to challenge the findings of the Board.  We see no basis to interfere with the Leave Decision.

22.  Finally, we do not see how the applicant’s marriage or his wife’s medical condition is relevant to the applicant’s non-refoulement claim or to this appeal, or how these matters could have impacted on the findings of the Board or the conclusions reached by the Deputy Judge.  We are not prepared to accord weight to them.

23.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.