WAHEED RAZA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 424/2023, [2024] HKCA 289

On Appeal From [2023] HKCFI 3198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 424 OF 2023

(ON APPEAL FROM HCAL NO 1139 OF 2021)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 7 December 2023 (“the Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 19 July 2021, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 21 December 2020.

BACKGROUND

2.  The Applicant is a national of Pakistan. He entered Hong Kong illegally on 29 April 2020, and was arrested on 11 May 2020. On 13 May 2020, he made a claim for non-refoulement protection, on the basis that, if refouled, he would be harmed or killed by a person called Rana Hayat (“RH”), who was a powerful politician associated with Pakistan Muslim League (Nawaz) (PML(N)), because RH wanted to take his land. Details of the Applicant’s claim were summarised by the Judge at §§5-13 of the CALL-1 Form.

3.  By a Notice of Decision dated 21 December 2020 (“the Director’s Decision), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 19 July 2021, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons were summarised by the Judge at §§14-20 of the CALL-1 Form:

“[14] On 23 April 2021, the Board directed the Applicant to produce documentary evidence of his ownership of the Land. It advised the Applicant that such evidence could be obtained online or by visiting the Punjab Land Records Authority (‘PLRA’) in-person through one of his family members in Pakistan.

[15] On 21 May 2021, the Applicant responded that he had taken reasonable steps to obtain documentary evidence but in vain. He said his father had been to PLRA for that purpose but was informed that because of COVID-19, PLRA would only respond to requests for very urgent services. He therefore did not expect he could provide documentary evidence at the hearing.

[16] The Applicant was legally represented at the hearing on 3 June 2021. He testified before the Board. He confirmed that the only problem facing him in Pakistan is RH. He said he could not provide evidence of his ownership because of the COVID restriction in Pakistan. The Board indicated that it had checked the PLRA website and found no indication that only a limited service was available. It indicated that it had entered the website on the morning of the hearing and managed to make an online appointment for the Applicant on the following Monday morning to obtain a fard, which is a document that shows ownership of land. It gave the Applicant 21 more days after the hearing to obtain the evidence of his ownership.

[17] On 18 June 2021, the Applicant wrote to the Board stating that he had taken reasonable steps to obtain the evidence. He claimed that his father visited the PLRA twice but only to be told that the PLRA would only respond to very urgent requests. He said he had tried to access the PLRA website but could not obtain evidence of title on line.

[18] The Board accepted to a degree that the Applicant might not be able to obtain evidence of title online as it has no direct experience before. However it noted that the PLRA website is impressive and indicates that information can be obtained through an online App, where ‘landowners can view the specific land records, registries data, tax calculator, fee schedule’ and it appears that there is 24/7 online fard facility in addition to other services. There was no indication on the PLRA website that the in-person service of the PLRA was being limited. It did not accept that the Applicant whether by himself or through his father had any real difficulty in obtaining the title document to prove his ownership. It found proof of ownership was ‘relatively simple [and] achievable’ for the Applicant and his inability to provide any documentary evidence suggested that he was not in fact the owner of the Land. It considered his evidence unreliable and incredible. His excuses for not providing evidence do not stand up to scrutiny. The Board found there is no evidence that he is the owner of the Land on which his feared risks rested. Hence, it concluded that there is no evidence of any risk to the Applicant upon his return. His claim for protection failed.

[19] The Board went on to consider the viability of internal relocation in the event that the Applicant’s evidence were accepted to be true and his risk is genuine. The Board noted that RH would not gain anything from killing the Applicant because ownership of the Land would be passed to his family members on his death. According to authoritative and credible country of origin information, the purposes of a land grabber would be achieved if the land owner is dispossessed of his land. Further, RH had no personal grudge against the Applicant and only harmed him to obtain the title to the Land. It therefore would serve no purpose for RH to expend a large amount of resources to locate the Applicant if he were relocated to other parts of Pakistan. The Board held that the Applicant could safely relocate to the Sindh province which had over 20 cities, including Karachi. The PML(N) had not won any seat in Sindh and RH would not be able to use his connection with PML(N) to locate him.

[20] Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.”

THE JUDGE’S DECISION

5.  On 13 August 2021, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In the supporting affirmation of the same date, the Applicant simply produced a copy of the Board’s Decision.

6.  The Judge held a hearing of the leave application on 27 November 2023. On 7 December 2023, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[23] Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claim is founded on his fear of being harmed or killed by a powerful land grabber for refusing to transfer his land to the land grabber.

[24] The Decision of the Board is based on its finding of the Applicant’s credibility and assessment of his risk of harm. The Applicant’s claim is founded on his ownership of the Land. The Board had thoroughly and carefully researched on matters relating to land grabbing in Pakistan by referring to authoritative and credible country of origin information (‘COI’). It had entered the PLRA website and even successfully made an appointment a few days after the hearing so that the Applicant’s father may attend the PLRA to obtain evidence of the Applicant’s ownership of the Land in question. It gave the Applicant helpful assistance in proving his ownership of Land which is the very basis on which his claim of harm and risk is founded. Despite repeated opportunities had been given to the Applicant, his response was that such evidence was unobtainable because of COVID-19 and PLRA’s policy of only providing services to very urgent requests. The Board considered his excuses could not stand up to scrutiny and hence he had failed to prove that he is the owner of the Land on which his feared risks arose. There is, therefore, no evidence of any risk to the Applicant upon his return to Pakistan. As the Applicant bears the burden of proof of his claims, such a finding is fatal.

[25] The Board did not stop there. It also assessed his claim on the basis of the case as he asserted. Even on his evidence, it found there was no factual basis to support his claim of fear. The land grabber had achieved his purpose dispossessing the Applicant of his Land. It would serve no purpose to locate and kill him in view of the costs and risk to prosecution. Thus, the Applicant’s risk of harm, if refouled, is low. It was also on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. His fear of harm and risk is not well-founded.

[26] Basically, the Applicant was not credible and failed to discharge his burden of proving his fears and risks. The primary basis of the Board’s Decision is that the Applicant had failed to prove the facts in support of his claim. The further and alternative basis is that even on the basis of the case as he asserted, as a matter of law he is not entitled to protection under the USM. Insofar as these are finding of facts, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as these are finding of the law, the Board is absolutely correct. The Decision is utterly without fault. There are no errors of law or procedural unfairness in its Decision. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court was satisfied that the Applicant has failed to advance any arguable grounds of review, let alone one with realistic prospect of success.”

THIS APPEAL

7.  In his Notice of Appeal filed on 20 December 2023, the Applicant raised the following grounds of appeal:

“(1) The applicant submits that the director the Adjudicator and the court has failed to take such argument into account or that the director has failed to give sufficient weight to such argument before reaching the decision.

(2) The Adjudicator failed to make sufficient enquiry before finalizing the determination the Adjudicator stated that the applicant has failed to advice any credible evidence to prove material elements of his claim.” [sic]

8.  Attached to the Notice of Appeal is a 2-page document dated 13 December 2013 in which the Applicant complained, inter alia, that the “decision” was not reasonable, and the Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director and when the Director was required to give reasons for his decision.

9.  On 20 December 2023, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

10.  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 20 December 2023.

DISCUSSION

11.  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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

12.  Further, the assessment of evidence, COI, 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.

13.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or 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.

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