SAEED NADEEM v. TORTURE CLAIMS APPEAL BOARD

CACV 342/2023, [2024] HKCA 152

On appeal from [2023] HKCFI 2721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 342 OF 2023

(ON APPEAL FROM HCAL NO 721 OF 2017)

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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 18 October 2023, Fung J refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a notice of appeal against the said decision on 26 October 2023.

2.  The applicant is a national of Pakistan. He had previously entered Hong Kong on 23 June 2001 and was subsequently arrested by the police for overstaying. He was eventually repatriated to Pakistan on 28 August 2001. He last entered Hong Kong illegally on 20 August 2007 and was arrested by the police on 27 September 2007. He raised a torture claim on 23 October 2007 which was rejected on 24 July 2013 by the Director of Immigration (“the Director”). He then lodged a non-refoulement claim on 8 August 2013. His claim was made on the basis that he would be harmed or killed by his ex-brothers-in-law and supporters of the political party Pakistan Muslim League (N) (“PMLN”) if he should return to Pakistan as he supports their rival Pakistan People’s Party (“PPP”).

The decisions of the Director

3.  As the applicant’s torture claim had already been rejected, his non-refoulement claim was assessed on BOR 3 risk[2] and persecution risk[3].

4.  By a Notice of Decision dated 19 August 2016, the Director rejected the applicant’s claim. Taking into account the low intensity and frequency of past ill-treatment from the applicant’s ex-brothers-in-law and/or members of PMLN, the Director assessed that the level of future risk of harm is low[4]. The Director further considered that whatever adverse interest that the ex-brothers-in-law and/or members of PMLN might have against the applicant should have subsided due to the long lapse of time and the fact that the applicant is no longer holding any active role in PPP. The Director also held that the availability of state protection and internal relocation alternatives in Pakistan further lowers or negates the perceived risk.

5.  On 28 February 2017, the Director invited the applicant to submit additional facts which he considers relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[5] in case he has previously omitted any relevant facts in relation thereto. By a Notice of Further Decision dated 16 March 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk in the absence of response from him to the aforesaid invitation.

The decision of the Board

6.  The applicant appealed against the Director’s decisions to the Board. He attended the hearing before the Board on 24 April 2017. The Board assessed that the applicant should be able to remain safe from either his ex-brothers-in-law or members from the PMLN if he relocates to an area far away from his home town. The Board also found that the previous ill-treatment had not attained the requisite minimum level of severity and there is no evidence showing that the applicant will be at risk of harm from the Pakistani government that would place his life at risk. The Board concluded that the applicant’s claim of fear has not been established and dismissed the appeal on 29 September 2017.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 6 October 2017 to seek leave to apply for judicial review against the Board’s decision. He stated the following grounds in his affirmation:

(1)  It was wrong to say as he had not been subjected to any severe pain in the past so it is unlikely he would be subjected to any severe pain or suffering in the future.

(2)  In fact, he had been intentionally assaulted by his enemies and suffered severe head injuries and has a very visible scar on his chest.

(3)  His ex-brothers-in-law are connected to the PMLN which is a ruling party in Pakistan.

(4)  Even if he relocates to another part of Pakistan, his ex-brothers-in-law are able to find him easily due to their family ties.

(5)  He cannot spend his whole life in hiding and live under constant fear of death.

The judge’s decision

8.  The applicant attended a hearing before Fung J on 27 September 2023. The judge found that the applicant’s grounds and submissions are just broad and vague assertions without necessary or relevant particulars or specifics or elaboration. The judge found no merits in the intended judicial review, as there is no error of law or irrationality or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the applicant. Thus, the judge dismissed the leave application on 18 October 2023.

Grounds of appeal

9.  In the notice of appeal filed on 26 October 2023, the applicant stated that his grounds of appeal are that the gravity of his circumstances has not been weighed or realized by the putative respondents and he should be given an opportunity to plead his case properly.

10.  In his written submissions lodged on 21 December 2023, he contended that:

(1)  the Board made many errors;

(2)  the court did not consider his arguments and did not give him an oral hearing; and

(3)  the court failed to find the errors of the Board and the judgment was wrong.

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.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board. Assessment of evidence and country of origin information 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.

13.  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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

14.  The applicant’s grounds and submissions in this appeal are just bare assertions without basis. Contrary to his submissions, the court had held a hearing on 27 September 2023. Besides, the applicant has not provided any evidence or particulars to show that the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  No viable ground has been put forward to reverse the decision of the judge. We therefore dismiss the appeal.