AHMED NASEER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 292/2020

[2021] HKCA 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 292 OF 2020

(ON APPEAL FROM HCAL NO 2381 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 June 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 22 October 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 28 February 2018 rejecting his non-refoulement claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal. 

3.  The applicant is a national of Pakistan.  He has previously entered Hong Kong in about 1997 as a visitor.  He overstayed and was removed back to Pakistan on 7 November 1998.  Then, in 1999 and 2003, the applicant entered Hong Kong using forged passports and was deported in 2001 and 2006 respectively.  The applicant entered Hong Kong illegally again in about July 2008 and was arrested by the police on 24 July 2008. He was convicted for entering Hong Kong illegally and breaching deportation order.  After serving prison sentence, the applicant was referred to the Immigration Department on 27 September 2009.  Before the Unified Screening Mechanism (“USM”) came into effect, the applicant first made his torture claim on 19 September 2008, which was rejected on 14 March 2013. The applicant was notified by the Notice of Persons Making a Non-refoulement Claim dated 19 December 2017 from the Immigration Department that his unsuccessful torture claim would not be further reviewed.  The applicant submitted a Supplementary Claim Form (“SCF”) dated 29 January 2018 under the USM and attended a further interview with the Immigration Department on 20 February 2018.

4.  The applicant’s claim is based on his fear of being harmed or killed by the Taliban.  His case was set out in detail in [9] of the Director’s decision dated 28 February 2018 and summarised by the Judge in [2]-[4] of the Form CALL-1[1].

5.  The applicant’s case, in brief, is that he was born and raised in District Jehlam, Pakistan.  In about 2007, the applicant was assaulted by people with wooden sticks whilst he was on his way home.  A shawl was put on his head at the time and he could not identify the assailants to the police.  At that time, the Taliban frequently attacked civilians in Pakistan.  As the applicant did not have any conflict with anyone in Pakistan, he believed that the assault was carried out by the Taliban and he feared that the Taliban would continue to physically assault him.  The applicant moved to Islamabad and then Karachi in Pakistan and he did not suffer any further physical harm by anybody.  However, the applicant frequently saw news about terrorist attacks against civilians in Pakistan and therefore decided to leave Pakistan out of personal safety concerns.  He entered Hong Kong by ship in about 2008.  The applicant reported that his sister and mother were killed in two terrorist attacks in October 2012 and October 2017 respectively.

6.  By his decision dated 28 February 2018, the Director rejected the applicant’s claim having regard to the persecution risk[2], BOR 2 risk[3] and BOR 3 risk[4] grounds.  There was no assessment under the torture risk[5] ground as the applicant had previously made a torture claim which had been rejected (see [5] above). 

7.  The applicant appealed against the Director’s decision to the Board on 7 March 2018.  He attended a hearing on 31 July 2018 with the assistance of an interpreter. 

8.  By its decision dated 22 October 2018, the Board dismissed the appeal having regard to the persecution risk, BOR 2 risk and BOR 3 risk grounds.  Primarily, the Board found that the applicant was not a truthful witness and that he has fabricated his claims in relation to the Taliban.  The Board had explored with the applicant many aspects in the applicant’s claim, such as whether his father’s previous connection with the Mujahideen in the 1980s would have made him a target of the Taliban, and discussed inconsistencies between the applicant’s previous accounts of events and those stated in the SCF.  The Board found the applicant failed to substantiate his claims as to why the Taliban would have made him or his family a target of ill-treatment, or to explain the inconsistencies in his evidence.  The Board concluded that the applicant failed to establish a case for non-refoulement protection under any of the applicable grounds.

Application for leave to start judicial review

9.  On 29 November 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision. The applicant did not set out in the Form 86 or his affirmation in support of his application any reasons that he considered the Board’s Decision was wrong or unfair. 

The Judge’s Decision

10.  After hearing the applicant on 16 July 2020, the Judge considered the applicant’s grounds and refused leave for the reasons set out in [12] – [17] of the Form CALL-1 :

“The Director’s Decision

12.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

13.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14.  For the reasons above, I dismiss the applicant’s application for leave to apply for judicial review of the Director’s Decision.

The Board’s Decision

15.  The applicant appeared before me. He confirmed that he considered that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator.

16.  I put to him the Adjudicator’s comment on the credibility of his evidence as per paragraph 111 of the Board’s Decision, the applicant said that he had no comments. The applicant has no factual basis in support of his case.

17.  The applicant therefore fails to show that he had any reasonable chance of success in his proposed judicial review.”

Appeal to Court of Appeal

11.  By a Notice of Appeal filed on 24 July 2020, the applicant appealed against the refusal of leave for judicial review on the following ground :

“I would like to reject and review the decision made by the Torture Claims Appeal Board on my non-refoulement case.

They disregard my dangerous situation.”

12.  Apart from this bare assertion, the applicant did not identify any errors in the Board’s or the Judge’s Decision.

Skeleton Submissions

13.  On 1 December 2020, the applicant lodged his written submission, in which he reiterated his dissatisfaction with the decision of the director and the Board in rejecting his non-refoulement claim and asked the court to reconsider his case.  The applicant has however not given any particulars of any aspect of the non-refoulement claim, whether legal or factual, that had been overlooked or had not been considered or checked properly.  The applicant also expressed that the interpreter and lawyer arranged for him did not “deeply realise” his problems.

Legal Principles

14.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

15.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

16.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here. 

17.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

18.  We heard the appeal on 14 January 2021. At the hearing, the applicant said he cannot return to Pakistan as he has stayed too long in Hong Kong that left him nobody there. 

Discussion

19.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

20.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

21.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s decision. 

22.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.