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

CACV 95/2024, [2024] HKCA 657

On Appeal From [2024] HKCFI 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 95 OF 2024

(ON APPEAL FROM HCAL NO 409 OF 2019)

________________________

_____________________

_______________

J U D G M E N T

_______________

Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 5 March 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 8 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 September 2017.

BACKGROUND

2.  The Applicant is a national of Pakistan. He entered Hong Kong illegally on 1 January 2015. On 7 January 2015, he surrendered himself to the Immigration Department and lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the family of a murderer (Zahoor) because he gave testimony in the trial that led to the conviction of Zahoor for the killing of the Applicant’s friend (Wajid). Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form.

3.  By a Notice of Decision dated 11 September 2017 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 3 risk[2], BOR 2 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 8 February 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §10 of the CALL-1 Form, as follows:

“In its decision the Board accepted the Applicant’s claim of fear of harm from Zahoor’s family for having testified against him in the trial that led to Zahoor’s conviction but found no reliable evidence of any real intention or attempts of them to harm or kill him or that those 3 assailants were sent by them to do so, that it is not accepted that the threats from Zahoor’s family were real given the fact that the Applicant had remained in Pakistan for several years without further incidents prior to his departure of the country, and that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Pakistan that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.  On 13 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision and the Director’s Decision. The Applicant’s grounds of intended challenge, as raised in his supporting affirmation and confirmed by him at the hearing before the Judge on 6 February 2024, have been summarised by the Judge at §11 of the CALL-1 Form, as follows:

“(1) That he was not provided with legal representation in his appeal before the Board;

(2) That he was not given language assistance to enable him to have a better understanding of the reasons of the Director and the Board for rejecting his non-refoulement claim which was procedurally unfair to the Applicant; and

(2) That the Adjudicator was illogical, unreasonable and unfair in rejecting his fear of being harmed or killed if refouled to his home country.”

6.  On 5 March 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[12] For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

[13] The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process, and that this ground is not reasonably arguable for his intended challenge.

[14] As for his complaint under Ground (2) of not being provided with language assistance in his appeal to the Board, it is clear that the Applicant was assisted by an interpreter in his appeal hearing before the Board during which he never raised any such issue. As such and in the absence of any relevant particulars or specifics to demonstrate that the basis of his claim might have been wrongly interpreted or misunderstood by the Board, I do not find this complaint of the Applicant reasonably arguable for his intended challenge.

[15] As regard his complaint under Ground (3) that the Adjudicator was illogical and unreasonable to reject his claim, it is just a bare and vague assertion of the Applicant without any relevant details or particulars or elaboration as to how the Adjudicator did so, and as such I do not find any basis or merit in this complaint of the Applicant either.

[16] As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

[17] Further, the fact is that it has also been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[18] In the premises and 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.”

THIS APPEAL

7.  In his Notice of Appeal filed on 11 March 2024, the Applicant merely stated the following:

“I am disagree with the decision maker authorities Torture Claim Appeal Board as well as the decision made by the Director of Immigration. I do not think my case determined fairly.” [sic]

8.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 21 May 2024. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  Neither the Applicant’s disagreement with the decisions of the Director and/or the Board, nor his general complaint of unfairness without particulars, can constitute a valid ground of appeal.

12.  The Applicant has failed to identify or show any error of the Judge in his decision of 5 March 2024, and has failed to raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

13.  The Applicant’s appeal against the Order has no merit and is dismissed.