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MOHAMMAD WAQAS ALIAS WAJID ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2021] HKCA 754-EN-2021-05-28

MOHAMMAD WAQAS ALIAS WAJID ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CACV 296/2020

[2021] HKCA 754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2020

(ON APPEAL FROM HCAL NO 1826 OF 2018)

________________________

BETWEEN
	Mohammad Waqas alias Wajid Ali	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent

________________________

Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 4 May 2021

Date of Judgment: 28 May 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Au JA) handed down on 20 January 2021 ([2021] HKCA 61) rejecting the appeal against the decision of Deputy High Court Judge K W Lung dismissing his application for leave to apply for judicial review concerning his non-refoulement claim ^{^[1]}.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar directed on 21 April 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 4 May 2021. Having considered the Notice of Motion and the written submissions, it is appropriate for the Court of Appeal to determine this application on paper.

3. The applicant is a national of Pakistan. He had been previously sentenced to imprisonment in Hong Kong and repatriated to Pakistan for two times, under different identities. When he came to Hong Kong for the third time, he again was convicted of some offences and sentenced to imprisonment. After serving his sentence, he lodged a torture claim which was subsequently withdrawn. He claimed that he had solved his problem in Pakistan and departed Hong Kong on 8 March 2011.

4. The applicant came to Hong Kong for the fourth time in 2016 and surrendered to the Immigration Department on 24 June 2016 under the identity of “Wajid Ali”. He lodged a non-refoulement claim on 3 August 2016. He claimed that if he is to be returned to Pakistan he would be harmed or killed by Chaudhry Abid Raza (“Chaudhry”) who was from the Pakistan Muslim League (N) (“PMLN”) and a member of the National Assembly in Gujrat.

5. His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 3 April 2017. His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 11 June 2018.

6. He filed a Form 86 on 4 September 2018 to seek leave to apply for judicial review against the decision of the Board. His application was refused by DHCJ K W Lung on 10 July 2020.

7. On 24 July 2020, the applicant filed a Notice of Appeal against the decision of DHCJ K W Lung. The Court of Appeal dealt with the appeal on paper as the applicant consented to the disposal of his appeal on paper without an oral hearing. His appeal was dismissed by the Court of Appeal on 20 January 2021. He filed a Notice of Motion out of time on 20 April 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

8. The applicant stated the following grounds of appeal in the Notice of Motion:

(1) The Board overlooked certain facts of substance which, if considered, would affect the result of the case;
(2) The Board sustained irregular procedures and through the invocation of summary methods including rules of appeal, tolerated a violation of due process;
(3) The agency when arriving at its findings went beyond the issues of the case; and
(4) Where the rights of the party were prejudiced because of the administrative findings, the conclusions and decisions of the Board were in violation of the international laws.

9. His submissions in writing may be summarized as follows:

(1) The judge’s finding is “belied by the evidence on record”;
(2) The Board misapprehended and/or overlooked certain facts of substance and of value. The applicant has proven by substantial evidence that people seeking his death possess power in Pakistan nationwide. Thus, to compel the applicant to seek internal relocation is to put him directly to the flames of death. The applicant would not have been forced to leave his homeland if the risk he is facing is indeed low and not serious;
(3) The Board’s findings are contrary to the admissions of the applicant and/or the evidence presented by him. Evidence on the record shows that the threats are serious and the applicant already experienced being kidnapped and tortured by the people he feared;
(4) The applicant’s rights under international laws were violated. He was tortured by the PMLN. The prohibition of torture is part of the customary international law. The prohibition of arbitrary deprivation of life, which includes an inherent obligation not to send any person to a country where there is a real risk that he may be exposed to such treatment, also forms part of the customary international law. The prohibition of refoulement to a risk of cruel, inhuman or degrading treatment or punishment is in the process of becoming customary international law;
(5) The applicant’s constitutional rights against basic due process were likewise violated. The Board failed to conduct a fair hearing. Otherwise, the Board would not have missed the overwhelming proof that the applicant’s life is critically threatened. The total ignorance of the glaring substance of the applicant’s proof by the Board is tantamount to denial of a fair hearing.

Analysis and disposition

10. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. The Court of Appeal may extend the time for making the application under section 24(5).

11. Good grounds have to be shown by the applicant for the court to grant him an extension of time. The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

12. Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

13. The applicant was late for more than two months in filing the Notice of Motion. He explained in his affirmation that he had applied for legal aid and had been told to wait for the legal aid decision. He has produced a copy of the letter issued by the Director of Legal Aid showing that his application for legal aid was rejected on 12 April 2021.

14. Even if the Court of Appeal is minded to excuse the applicant’s delay in filing the Notice of Motion, this application does not meet the requirement for granting leave to appeal to the Court of Final Appeal. The applicant’s grounds of appeal are unmeritorious. In particular, his complaints against the Board’s decision are untenable. He has not produced any reliable evidence to refute the Board’s findings, while his evidence is based on his own assertions in which a number of significant inconsistencies were identified by the Board. The applicant failed to provide justifiable explanations for the inconsistencies. The Board’s finding that the applicant invented the claimed adverse interest from Chaudhry is well founded. For instance, it is inherently improbable that the applicant could not even state the full name of the political party in which he claimed he was involved. As the core issues in the applicant’s claim cannot be substantiated, his grounds and submissions pertaining to his rights under the relevant laws would not assist his present application.

15. Moreover, the applicant has not demonstrated that the Court of Appeal was wrong in dismissing his appeal. He has also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

16. For the above reasons, we dismiss the Notice of Motion filed on 20 April 2021 and decline to grant leave to appeal to the Court of Final Appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

[1][2020] HKCFI 1473

CACV 296/2020

[2021] HKCA 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2020

(ON APPEAL FROM HCAL NO 1826 OF 2018)

________________________

BETWEEN
	Mohammad Waqas alias Wajid Ali	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent

________________________

Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 23 October 2020

Date of Judgment: 20 January 2021

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 10 July 2020^{^[1]}. By his decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2. The applicant is a national of Pakistan. He first came to Hong Kong as a visitor in 2000 under the identity of “Wajid Ali” and was convicted of breach of condition of stay and later repatriated to Pakistan on 8 January 2002^{^[2]}. He came to Hong Kong again on 17 March 2002 as a visitor under the identity of “Mohammad Waqas”. According to this identity, his date of birth was 21 April 1980. He was convicted of theft and breach of condition of stay. After serving his sentence, he was deported to Pakistan on 29 September 2003.

3. He came to Hong Kong for the third time and was convicted of unlawful gambling, breach of deportation order and remaining in Hong Kong without authority on 6 November 2006. After serving his sentence, he lodged a torture claim on 17 March 2007. He eventually withdrew his torture claim on 21 February 2011 claiming that he had solved his problem in Pakistan. He departed Hong Kong on 8 March 2011.

4. The applicant came to Hong Kong for the fourth time in 2016 and surrendered to the Immigration Department on 24 June 2016 under the identity of “Wajid Ali”. According to this identity, his date of birth was 22 July 1978. He lodged a non-refoulement claim on 3 August 2016. He claimed that he would be harmed or killed by Chaudhry Abid Raza (“Chaudhry”), who was from the Pakistan Muslim League (N) (“PMLN”) and a member of the National Assembly in Gujrat, if he is to be returned to Pakistan. The applicant used to be a member of PMLN for several years but had switched his support to the Pakistan Tehreek-e-Insaf (“PTI”) in 2013 or 2015.

5. The applicant lodged a notice of appeal against the decision of DHCJ Lung on 24 July 2020. He consented to the disposal of his appeal on paper but did not consent to the appeal to be determined by two Justices of Appeal. Pursuant to the direction of the Registrar of Civil Appeals on 8 October 2020, he lodged his written submission on 23 October 2020.

The Director’s decision

6. By a Notice of Decision dated 3 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^{^[3]}, BOR 2 risk ^{^[4]}, BOR 3 risk^{^[5]} and persecution risk^{^[6]}.

7. Taking into account the low intensity and frequency of past ill-treatment from Chaudhry, the Director assessed that the level of risk of harm upon the applicant's return to Pakistan is low. The Director further considered that there is no evidence to suggest that the Pakistani government was involved in any of the attack and threats against the applicant. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

8. The applicant appealed to the Board against the Director’s decision. The Board conducted an oral hearing on 23 May 2018. The Board accepted that Chaudhry was elected as a member of the National Assembly in the Pakistani general election in May 2013 and that the Supreme Court issued arrest warrants against him for his involvement in murder in 2015. However, the Board found a number of significant inconsistencies and omissions in the applicant's evidence and hence did not accept that he was threatened or harmed by Chaudhry or his men or that he was in any way associated with Chaudhry. The Board found that the applicant fabricated the claimed adverse interest from Chaudhry, the claimed political involvement and the alleged past incidents in an attempt to prolong his stay in Hong Kong. The applicant could not even state the full name of the political party he claimed he was involved in. The Board held that there is no real risk of the applicant facing harm from Chaudhry or anyone for reasons relating to his or his family's real or perceived political views, activities or affiliations if he returns to Pakistan. The Board therefore found that the applicant is not entitled to non-refoulement protection and rejected the appeal on 11 June 2018.

The intended judicial review

9. The applicant filed a Form 86 and an affirmation on 4 September 2018 to seek leave to apply for judicial review against the decision of the Board.

10. He stated his grounds for his intended judicial review in the exhibit to his supporting affirmation. He reiterated his fear that he will be exposed to harm from the PMLN and contended that the evidence showed that he had encountered several problems and his life was and still is exposed to danger.

The judge’s decision

11. The applicant appeared at the hearing on 16 October 2019 before DHCJ Lung. Having considered the circumstances and the evidence, the judge did not accept the applicant's allegations against the Board raised at the hearing which are not mentioned in his supporting affirmation. In any event, the judge rejected the allegations as he found them extraordinary and incredible^{^[7]}. The judge held that the applicant failed to show he has any reasonable prospect of success in his intended judicial review and dismissed the leave application on 10 July 2020.

Grounds of appeal

12. The applicant stated as his ground of appeal in the notice of appeal there was procedural unfairness in his case.

13. His grounds as stated in his written submission may be summarized as follows:

(1) the Director's finding is belied by the evidence on record; and
(2) the Board failed to conduct a fair hearing. It ignored the overwhelming proof that the applicant's life is critically threatened.

Legal Principles

14. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

15. 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 Country of Origin Information materials and 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.

16. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

17. The applicant’s grounds of appeal are not viable for this court to reverse the judge's decision. In particular, he failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

18. Furthermore, he failed to provide evidence to challenge the Board’s findings against him or to explain the significance inconsistencies or problems in his evidence which were identified and analysed in detail in the Board’s decision. He has not shown there are any errors of law or procedural unfairness or irrationality in the decision of the Board.

19. For the above reasons, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review. We therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 1473

[2] §11 Immd

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[7] [2020] HKCFI 1473 at §§13 to 15