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

CACV 54/2021

[2021] HKCA 1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 54 OF 2021

(ON APPEAL FROM HCAL NO 2270 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 2 February 2021, DHCJ C P Pang (“the Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 10 October 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 31 July 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 10 February 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.  On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing. 

3.  Pursuant to the directions of Registrar of Civil Appeals made on 13 April 2021, the applicant should lodge his written submissions on or before 28 April 2021.  He failed to do so.  The Registrar further directed that in the event the applicant failed to lodge his written submissions by the deadline, he will be deemed to have abandoned his right to rely on written submissions. 

4.  As it is appropriate to do so, we have proceeded to consider the appeal on paper based on the available documents and materials.

Background

5.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 1 May 2015 and surrendered himself to the Immigration Department a few days later.  On 19 August 2015, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or even killed by people from the rival political party Pakistan Muslim League (“PMLN”)  as he was a member of Pakistan Awami Tehreek (“PAT”).  The factual background of this case was succinctly summarized by the Judge in [3] of the Form CALL-1 ([2021] HKCFI 213).

6.  By a Notice of Decision dated 31 July 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

7.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 15 May 2018 and by its decision dated 10 October 2018, the Board dismissed the appeal.  For the reasons set out in [80] to [113] of the Board’s decision, the Board only accepted part of the applicant’s evidence as credible, finding that he was only an ordinary member of PAT and he had attended rallies and meetings only in that capacity.[5]  The Board was not satisfied on the evidence that he had held any significant or leadership role in PAT.[6]  It also found that PAT was only a minor political party in Pakistan.  The Board thus did not accept that the applicant would be targeted by the Pakistani government or the PMLN for harm because of his political opinion or his support for PAT if he were to return to Pakistan.[7]  The Board accepted that the applicant was detained and questioned by the Pakistani police for reasons related to his activities in protesting against the authorities, but he was released thereafter and having considered the relevant Country of Origin information (“COI”), the Board did not consider that he would be denied a fair trial, and it found that legal assistance would be available to him.[8]  The Board further took into account the fact that the applicant did not seek protection when he arrived in the Mainland before coming to Hong Kong, and the fact that he had at one time withdrawn his non-refoulement claim, which facts suggested that he was not a genuine asylum seeker.[9]  For the aforesaid reasons, the Board did not find that the applicant would be at real risk of any types of proscribed harmed, and his non-refoulement claim failed on all applicable grounds.

Decision of the court below

8.  On 19 October 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  He did not provide any grounds in his Form.  In exhibit “A” of his supporting affirmation, he only reiterated the background of his case as presented before the Board and urged the court to allow his non-refoulement claim.   

9.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  By his decision given on 2 February 2021, the Judge refused to grant him leave to apply for judicial review, the reasons for the refusal being set out at [14] – [24] of the Form CALL-1 as follows:

“14. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. 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, procedural unfairness or irrationality in the decision of the Board.

15. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

16. In the present case, the Board found the applicant’s accounts and claims partly credible and partly incredible. It accepted his claims of involvement in the activities of PAT. However, having regard to its assessment of the applicant’s level of activities and the minor status of his party in the Pakistan political scene over all, it did not accept that the applicant would be targeted for harm or that he is a person of adverse interest to the PMLN, or to anyone else. Based on the objective COI before it, it also did not accept that the applicant would be denied a fair trial in Pakistan. The Board properly in my view took into account the fact that he did not seek protection on the mainland before he came to Hong Kong and the fact that he had withdrawn his non-refoulement application before. Having carefully considered all the evidence before it, the Board found the suggestion of any risk to the applicant in the circumstances “far-fetched and fanciful”.

17. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

18. The applicant mentioned nothing in the 4-page complaints attached to his affirmation to suggest how the Board erred in the public law sense. It only contained a regurgitation of his claims and did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board.

19. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

20. The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility about his claimed fear with detailed reasons. The Board was entitled to come to such a finding on the evidence before it. I do not find any reasonably arguable basis to challenge the findings of the Board.

21. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

22. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

23. 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, irrational findings, or procedural unfairness in their decisions. Nor do I see any failure on their part to apply high standards of fairness.

24.  For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.”

Appeal to this Court

10.  On 10 February 2021, the applicant filed his Notice of Appeal against the Judge’s decision on the following grounds:

“My case is that the judge’s direction was wrong in law and I was not given sufficient opportunity of hearing my claim. My case was, that I would face personal and substantial risk of my absolute right and non-derogable rights under the HKBOR by being violated at my home country.”

Legal principles

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(1)  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 on appeal, which operates as a re-hearing, 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 issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.

(2)  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, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.  The applicant’s complaint that the Judge’s decision was “wrong in law” is a vague and general assertion without particulars and elaboration and is not a valid ground of appeal. 

13.  His further complaint that he was not given sufficient opportunity to have an oral hearing for his leave application before the Judge was incorrect.  As mentioned at [12] of the Judge’s decision, the applicant did not request for an oral hearing and thus his leave application was dealt with on paper.  It is clear from the Judge’s decision that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and we found no error or any discernible ground to disturb the Judge’s decision.

14.  Lastly, the applicant reiterated his fear that he would face substantial risk of harm or life upon returning to Pakistan.  The Board had thoroughly dealt with the factual evidence before it and there is no ground for the court’s intervention.

Order

15.  For the above reasons, this appeal is dismissed.