ARSLAN ALI v. TORTURE CLAIMS APPEAL BOARD

CACV 346/2023, [2024] HKCA 309

On Appeal From [2023] HKCFI 2765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 346 OF 2023

(ON APPEAL FROM HCAL NO 1273 OF 2022)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 26 October 2023[1] dismissing the applicant’s application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 28 September 2022.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 18 February 2019 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan born in 1995.  He entered Hong Kong illegally and surrendered to the Immigration Department on 2 August 2018.  On 22 October 2018, the applicant lodged a claim for non-refoulement protection on the basis that if he returned to Pakistan, three men would harm or kill him because he witnessed their robbery of his late uncle’s store and their shooting of his late uncle.  The factual background of the applicant’s claim was set out at [14] of the Board’s decision.

3.  By notice of decision dated 18 February 2019, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 16 August 2022, during which the applicant gave evidence and answered questions from the Board, including about the first information report (“FIR”) dated 31 December 2017 which was submitted by the applicant in support of his claim.  The FIR purportedly contained a statement of the late uncle concerning details of the robbery of his store and shooting. The applicant claimed that the FIR was obtained from his father through Whatsapp but he did not know how his father obtained this document.  At the oral hearing, the applicant gave oral evidence inconsistent with the evidence he had given in his non-refoulement claim form and also inconsistent with the FIR.  The Board found that the applicant was not a credible witness for the detailed reasons set out in its written decision, including the internal inconsistencies in his evidence and the inherent implausibilities which the Board had raised with the applicant at the hearing. As a consequence, the Board rejected that the applicant witnessed the shooting of his late uncle at their workplace amidst a robbery or that the applicant or his late uncle had made any complaint to the police.  In addition, it rejected that the robbers had spied on or attacked the applicant as claimed.  The Board considered that the applicant had fabricated his claims in attempt to create a basis for claiming non-refoulement protection.  

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Pakistan.  It found there was in fact no real risk of harm if the applicant returned to Pakistan, because it considered that the applicant did not face any real risk of harm from any of the robbers as alleged.  As the Board found there was not a real risk of harm from the robbers, it did not consider or make any findings in relation to internal relocation or availability of state protection in Pakistan.  Accordingly, by   its written decision dated 28 September 2022, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.  

The Judge’s decisions in the court below

6.  On 16 November 2022, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply stated that he disagreed with the Board and annexed the Board’s decision.

7.  On 24 July 2023, the applicant filed an affirmation stating that he wanted to “close” his case and return to Pakistan as soon as possible.

8.  The Judge considered the application on the basis of the documents alone without an oral hearing. On 26 October 2023, the Judge issued his decision, dismissing the application for leave to apply for judicial review.  The reasons were set out in [12] to [17] of the Form CALL-1 as follows:

“ 12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 29 – 38 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. The fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16. Moreover, the Applicant recently filed an affirmation requesting to “close” his case as he wants to return to his home country as soon as possible.

17. In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country as soon as possible, I accordingly dismiss his leave application.”

Appeal to this Court

9.  On 31 October 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal was that the Judge did not consider his claim properly.

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant had lodged written submissions on 14 November 2023 in which he repeated his claim for non-refoulement protection.  He also stated that the Judge did not hold an oral hearing and did not consider his points at all.  There was no explanation of why his position had changed since his affirmation for withdrawal of the application for leave to apply for judicial review before the Judge.

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant was not a credible witness.  It found his evidence to be inconsistent and rejected his claims.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As for the allegations that the Judge did not consider the applicant’s argument and that the Board was wrong, they are merely general and bald assertions regarding the decision of the Judge and the Board without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  The Judge was entitled to determine the leave application without an oral hearing pursuant to Order 53, rule 3(3) of the Rules of the High Court (Cap 4A), there being no request from the applicant for an oral hearing.  The applicant has offered no explanation for his change of position regarding his previous application seeking closure of the case.  We are not satisfied that there is any reviewable error in the Judge’s decision.    

15.  The applicant’s appeal is accordingly dismissed.