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

CACV 429/2021

[2022] HKCA 134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 429 OF 2021

(ON APPEAL FROM HCAL NO 2811 OF 2018)

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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 26 August 2021, Deputy High Court Judge K W Lung refused to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 6 September 2021.

2.  The applicant is a national of Pakistan. He is 45 years old. He entered Hong Kong illegally and was arrested by the police on 15 September 2012. He lodged his torture claim on 17 September 2012 which was refused by the Director of Immigration (“the Director”) on 8 February 2013 and his appeal was dismissed by the Board on 2 April 2013. His claim was made on the basis that he will be harmed or killed by some members of the Pakistan Muslim League (Nawaz) (“PML(N)”) because of a land dispute.

The Director’s decision

3.  After the commencement of the Unified Screening Mechanism in 2014, the applicant’s claim was further assessed on BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. The applicant lodged a supplementary claim form and attended a screening interview on 28 February 2018. By a Notice of Decision dated 7 March 2018, the Director rejected the applicant’s non-refoulement claim on the said applicable grounds.

4.  Taking into account the low intensity and frequency of the past ill-treatment from the PML(N) members, the Director assessed that the level of future risk of harm upon the applicant’s return is low. The Director further considered that the alleged ill-treatment had not attained the requisite minimum level of severity. The Director also considered that those PML(N) members have no reason or motive to pursue the applicant or kill him after having successfully occupied the land for years without any of the applicant’s family members showing intention to retrieve it. Moreover, the Director held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant’s appeal against the Director’s decision was heard before the Board on 22 August 2018. Although the Board was prepared to accept on balance that the applicant had a dispute regarding the seizure of his family’s land through violent and fraudulent means, the Board had concerns with the extent to which the applicant has been threatened and whether the fear of harm is as serious as claimed. The Board considered that the applicant had exaggerated his claims in relation to the alleged danger. The Board further held that state protection is available and alternative internal relocation is a reasonable option for the applicant to avoid the harm he fears. Thus, the Board rejected the appeal on 3 December 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 10 December 2018 to seek leave to apply for judicial review against the decision of the Board. He did not put forward specific grounds for his intended judicial review. He only stated in his supporting affirmation that he cannot go back to his country because his life is not safe there.

The judge’s decision

7.  DHCJ K W Lung considered the leave application on paper as the applicant did not request for an oral hearing. The judge held there is no error of law or procedural unfairness in the Board’s decision and the findings of the Board are not Wednesbury unreasonable or irrational in any respect. The judge therefore dismissed the leave application on 26 August 2021.

Grounds of appeal

8.  The applicant stated the following grounds of appeal in the Notice of Appeal filed on 6 September 2021:

(1)  The decisions are unlawful.

(2)  The decisions failed to take into account many things and issues.

(3)  The applicant’s life is in danger in his home country so he cannot go back.

9.  His further contentions in his written submissions may be summarised as follows:

(1)  The immigration officer did not know the real situation and condition of Pakistani culture.

(2)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence.

(3)  The applicant was tortured at the behest of and in collusion of the police and the law enforcement agencies as well as those in the political circles.

(4)  The Director failed to take into account the state’s failure in providing reasonable protection to its citizens. The Director failed to consider or give sufficient weight to the relevant country of origin information which supports the applicant’s case that the Pakistani police would not be able to protect him.

(5)  Corruption and incompetency of the administration in Pakistan is still a very serious problem. Various human rights organizations have compiled reports on the matter which gave testament to the applicant’s assertions.

(6)  The Director failed to attain the high standard of fairness and the decision is unreasonable.

(7)  The adjudicator failed to make sufficient enquiries before finalising the determination and failed to give sufficient chance to the applicant to arrange relevant evidence.

(8)  A sufficiently established threat of BOR 3 risk constitutes a ground restraining the Hong Kong government from proceeding with the deportation.

He made no oral submissions at the hearing of the appeal.

Legal Principles

10.  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.

11.  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

12.  The applicant’s complaints against the Director and the Board were not raised before the judge in his previous leave application. The Court of Appeal will not entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time. In any event, the applicant failed to adduce any evidence in support of his complaints. 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 present case, the applicant failed to demonstrate there is any error of law or procedural unfairness or irrationality in the Board’s decision despite the bare assertions in his written submissions.

13.  The rest of the applicant’s grounds are just bare assertions without particulars, elaboration and/or evidence in support. In particular, the applicant has failed to demonstrate that the judge’s decision is unlawful or failed take into account any relevant issues.

14.  For all the above reasons, the appeal is devoid of merit. We therefore dismiss this appeal.

[1] [2021] HKCFI 2456

[2] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to the 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.