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CACV 160/2021
[2021] HKCA 1344
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 160 OF 2021
(ON APPEAL FROM HCAL 870 OF 2018)
________________________
| RE |
ALI MUHAMMAD |
Applicant |
________________________
Before: Hon Cheung JA and Lisa Wong J in Court
Date of Hearing: 6 September 2021
Date of Judgment: 17 September 2021
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal by the abovenamed applicant, Ali Muhammad, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 8 April 2021 (“Judge’s Decision”) refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 11 May 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 18 February 2016 and a notice of further decision dated 9 March 2017 (“Director’s 1st Decision” and “Director’s 2nd Decision” respectively and “Director’s Decisions” collectively).
Basis of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of Pakistan now aged about 29, is a fear of being harmed or even killed by (1) the Taliban for refusing to join them and (2) the local army and police on suspicion of his being involved with the Taliban.
3. For a detailed summary of the circumstances giving rise to such fear, see paragraph 6 of the Director’s 1st Decision and paragraphs 18 to 35 of the Board’s Decision.
4. Briefly:
(1) In 2010, after evading the Taliban’s attempt to recruit him to join the Jihad (the “Holy War”), the applicant fled to the neighbouring village where he hid for 2 years without any mishap.
(2) In 2012, the same Taliban men abducted the applicant and detained him at a Taliban camp where he was trained in the use of various weapons under compulsion.
(3) The applicant made his escape upon learning that he would be deployed with others to attack an army camp and some police outposts near his home village.
(4) Although he escaped from the Taliban, the applicant believed that the army would then be after him for having been trained by the Taliban and that he would be hung if caught.
Illegal entry into Hong Kong and lodgment of NRF Claim
5. The applicant left Pakistan on 9 May 2012 for China. He sneaked into Hong Kong illegally, and was arrested, on 13 May 2012.
6. By written representation dated 15 May 2012, he raised a torture claim[1], the processing of which had not been completed upon the commencement of the unified screening mechanism on 3 March 2014. Thereafter, the applicant’s torture claim has been dealt with as a non-refoulement claim. A Non-refoulement Claim Form dated 18 August 2015 was submitted. The applicant also attended a screening interview. He then had legal representation from the Duty Lawyer Service.
Director’s Decisions
7. The Director’s 1st Decision found the NRF Claim unsubstantiated on the grounds of torture risk[2], persecution risk[3] and “BOR 3” risk[4]. The Director’s 2nd Decision then rejected the NRF Claim for failing to show any “BOR 2” risk[5].
Appeal to Board and Board’s Decision
8. The applicant appealed against the Director’s 1st Decision to the Board on 3 March 2016.
9. The Board conducted a rehearing of the NRF Claim on 11 April 2017, at which the applicant testified before, and answered questions by, the Board through an interpreter.
10. The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection[6], doubting that the Taliban would still have any adverse interest in the applicant after so many years. More particularly:
(1) Torture risk – The acts committed against the applicant had not attained the level of severity in pain or suffering, or been inflicted for any of the listed purposes connected with the state’s interests or policies.
(2) Persecution risk – The ill-treatment the applicant feared was not well-founded or inflicted on account of a Convention reason: race, religion, nationality, membership of a particular social group and political persuasion.
(3) BOR 2 risk – The evidence contradicted the applicant’s claim that he had become a target of the army/police for having been trained by the Taliban.
(4) BOR 3 risk – The ill-treatment the applicant claimed to have suffered at the hands of the Taliban had not attained the minimum level of severity. There is no genuine or substantial risk of the applicant being subjected to CIDTP on his return to Pakistan.
11. The Board also found that state protection and reasonable internal relocation options would be available to the applicant in Pakistan.
Application for leave for judicial review and Judge’s Decision
12. The applicant’s notice of application for leave to apply for judicial review issued under HCAL 870/2018 on 18 May 2018 (“Form 86”) did not set out any proposed ground for judicial review. The supporting affirmation of the same date merely repeated the same fear grounding the NRF Claim. That being the case, the Judge did not find any reasonably arguable basis for the applicant’s intended challenge and dismissed the Form 86.
Appeal to Court of Appeal - grounds of appeal and submission
13. Likewise, the applicant advanced no ground of appeal in the notice of appeal and the supplemental notice of appeal filed herein on 12 April 2021 and 28 May 2021 respectively.
14. By his written submission dated 25 June 2021, the applicant referred to ST v Director of Immigration (sic)[7] [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, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex parte Smith[8]for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim; and (4) that the court may interfere with the exercise of an administrative discretion that is beyond the range of responses open to a reasonable decision-maker.
15. The applicant appeared in person at the hearing of the appeal on 6 September 2021. He was provided with a Pushto/English interpreter. He claimed that the situation in Pakistan has remained the same or become even worse, as it has been impacted upon by the withdrawal of the American force and the activities of the ISIS.
Discussion
16. In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.
17. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
18. The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision. That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.
19. Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].
20. The applicant did not in either of the notices of appeal or submission before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nor can we discern any.
21. As for the well-established legal principles cited in the applicant’s written submission, there was no attempt by the applicant to elaborate on whether and, if so, how they had not been honoured in the processing of the NRF Claim.
Disposition
22. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Peter Cheung) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the
Court of First Instance |
The applicant, unrepresented, appeared in person
[1] Under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[6] Notwithstanding that the applicant had not lodged any appeal against the Director’s 2nd Decision.
[7] The correct citation should be ST v Betty Kwan.
[8] The citation of which is [1996] QB 517.
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