SHAFIQ MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

CACV 229/2020

[2020] HKCA1023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 229 OF 2020

(ON APPEAL FROM HCAL NO 1847 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon G Lam J (giving Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) dated 17 June 2020 refusing 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 24 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 27 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Pakistani national.  He entered Hong Kong illegally in January 2016 and was arrested by the police on 17 January 2016.  He lodged a non-refoulement claim on 20 January 2016. 

3.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by supporters of the Pakistan Muslim League (N).  The applicant was a member and supporter of a rival political party, the Pakistan Tehreek-e-Insaf.  The factual background was summarized by the Judge in [4]-[6] of the Form CALL-1 ([2020] HKCFI 1211).

4.  By notice of decision dated 27 February 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against the applicant.  The applicable grounds are BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]

5.  The applicant appealed to the Board.  An oral hearing was held on 21 May 2018 during which the applicant was interviewed by the Board.  The Board found the applicant’s evidence generally credible and reliable.  However, because the Board considered that the level of violence inflicted upon the applicant was not severe, it concluded there was no real risk of harm to the applicant.  In addition, the Board found that there was no evidence of state involvement in the incidents complained of.  The Board considered that state protection was available and that internal relocation was viable.  In the result, the Board dismissed the appeal on 24 August 2018.

Decision of the court below

6.  On 5 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  His grounds for seeking relief were set out in his affirmation in support of his Form 86, namely:

(1)  he is not very educated, and sometimes confuses and does not understand questions completely or reply to them precisely;

(2)  the Board failed to conduct inquiries from reliable sources and did not fully study the ground realities of his case; there was therefore no reasonable ground for refusing his appeal; and

(3)  due to a new law and the fight against terrorism (in Pakistan), state protection is non-existent and relocation is practically impossible.

7.  A hearing on the application for leave for judicial review was held on 12 December 2019 at which the applicant attended before the Judge.  On 17 June 2020 the Judge handed down his decision refusing to grant leave to apply for judicial review, the reasons for which were set out at [13]-[16] of the Form CALL-1 ([2020] HKCFI 1211):

“ 13. In his affirmation in support of his application, he said that he did not agree with the Adjudicator’s decision. He did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14. The applicant appeared before me and he confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. His duty lawyer had explained the Director’s Decision to him. His wife had explained the Board’s Decision to him. However, he was not quite clear about the reasons of the Board for refusing his appeal. I therefore explained the Board’s reasons to him. He said that he understood and he did not have any comments on them.

15. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to this Court

8.  On 30 June 2020, the applicant filed his Notice of Appeal in which the grounds of appeal are stated as follows:

(1)  there was procedural impropriety in failing to:

(a)  consider the concept of extended state acquiescence in his claim;

(b)  conduct sufficient independent inquiry into the relevant COI as to the effectiveness of the Indian authorities to protect its citizens;

(c)  consider the facts that persons are being killed in the name of religion in his country, India;

(2)  misdirection in law by failing to consider the psychological effects of threats made against him or the severity of threats and attacks or to take into account evidence of the attacks against his family;

(3)  the cumulative effect of inactions by local authorities in protecting citizens without political affiliations in India; and

(4)  irrationality and illegality in failing to give sufficient reasons as to why he was not found to be at risk under any of the applicable grounds for non-refoulement.

9.  The applicant has agreed in writing that the appeal can be heard by 2 judges.

10.  The applicant lodged his written submissions for the appeal on 8 October 2020, in which he raised the following arguments that were not raised in his Notice of Appeal:

(1)  the Board unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirements;

(2)  the Board’s decision was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness;

(3)  the Board failed to apply the high standards of fairness owed to a self-represented claimant, in that the hearing bundle was all in English and provided to him without sufficient time for him to prepare for the appeal before the Board;

(4)  the Board had significantly relied on sources of news which was not officially recognized or was hearsay or outdated, resulting in a groundless speculation that it would be safe for him to return to his home country; and

(5)  the Board failed to consider the volatile political situation and pattern of human rights violations in Pakistan.

11.  In those submissions the applicant did not provide any details or particulars in support of his arguments or grounds of appeal.

12.  On 27 November 2020, however, the applicant filed a Request for Dismissal of Appeal requesting that his appeal be dismissed.  At the hearing of the appeal on 9 December 2020, the applicant did not appear.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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 purpose 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 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 matters 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.

(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 his decision 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.  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. Otherwise, an applicant could flagrantly disregard the stringent time limit for judicial review in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.  Although the applicant has made a written request for the dismissal of his appeal, we shall nevertheless briefly discuss the merits of his appeal.

15.  As mentioned earlier, the applicant did not in his Notice of Appeal or his submissions provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

16.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any specific error by the Judge, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its finding that there was no real risk of harm to the applicant if he were to return to Pakistan.  This finding was based on the facts alleged by the applicant which were accepted by the Board who found his evidence to be generally credible and reliable.  Such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

18.  In light of the Board’s finding that there was no real risk of harm, it was not necessary for the Board to consider country of origin information; whether or not the Board could have taken a different view of COI would not have changed the result.  As such, the applicant’s grounds of appeal and submissions pertaining to country of origin information and conditions are without merit.  Further, in light of the Board’s finding that there was no real risk of harm to the applicant, his other grounds of appeal and submissions are eminently unarguable.

19.  As for the applicant’s grounds of appeal and submissions that refer to India, those are obviously raised in error and inapplicable, as the applicant’s country of origin is Pakistan.

20.  Having considered the materials before us, we are of the view that there is no valid ground for challenging the decision of the Judge.

21.  Pursuant to the applicant’s request, and for these reasons, the appeal is dismissed.