RE IBRAR MUHAMMAD

CACV 301/2022, [2024] HKCA 434

On Appeal From[2022] HKCFI 2245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 301 OF 2022

(ON APPEAL FROM HCAL NO. 102 OF 2019)

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JUDGMENT

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

I. Leave to appeal to the Court of Final Appeal

1.  On 28 April 2023, this Court (Poon CJHC and Cheung JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 22 July 2022 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment. We will not repeat them here.

3.  The applicant now applies, by a notice of motion filed on 8 May 2023, for leave to appeal against our judgment to the Court of Final Appeal. The applicant stated in his notice of motion the following :

‘ 1) I did not failure to lodge the proofs to the TCAB and NOD. I try to file report in police station. After when I came here my family also try to solve problem but it does not work.

2) The judges mention that they were agree with the decision of TCAB and NOD that I can relocate any where in Pakistan. Its impossible to find work in our own village then its not possible for me relocate anywhere else in find a job. The ground detail will provid later.’

4.  The applicant stated in his written submissions in summary the following points :

1)  High standards of fairness is required for determining torture claims: Secretary for Security v Prabakar [2005] 1 HKLRD 289;

2)  Appropriate standard of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary ex parte Doody [1994] 1 AC 531 at 560D-G.

3)  The Court should not usurp the function of the decision maker.

4)  The Court should determine non-refoulement cases with anxious scrutiny and rigorous examination.

5)  The Adjudicator did not properly assess the applicant’s credibility.

6)  The modified Wednesbury test is that the decision is beyond the range of responses open to reasonable decision‑maker: R v Ministry of Defense ex.p. Smith.

7)  Late filing of notice of appeal to the Board may only take account of statement of reason and any other relevant matter: section 37ZT.

8)  Internal relocation is impossible as it is unsafe.

II.  Our view

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

6.  The matters stated by the applicant in his notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal. The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance. Nor is there any such question apparent to us from the matters raised by the applicant.

7.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b) of the Ordinance.

III.  Disposition

8.  For these reasons, the notice of motion dated 8 May 2023 is dismissed.

Applicant, unrepresented, acting in person

CACV 301/2022, [2023] HKCA 602

On Appeal From [2022] HKCFI 2245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 301 OF 2022

(ON APPEAL FROM HCAL NO. 102 OF 2019)

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J U D G M E N T

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

I.  Factual background

1.  On 22 July 2022, Deputy High Court Judge Bruno Chan refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) concerning his non‑refoulement protection claim.

2.  On 5 August 2022, the applicant filed his Notice of Appeal with the Court of Appeal to appeal against the decision of the Judge.  We will deal with the appeal on paper.

3.  The applicant is a national of Pakistan.  He is 31 years old.  He entered Hong Kong illegally on 16 February 2016 and was arrested by the police on the same day.  He raised a non‑refoulement claim on the basis that if he returned to Pakistan, he would be harmed or killed by certain local supporters of the political party Pakistan Muslim League(N) (‘PML(N)’), as he supported their rival party Pakistan Tehreek-e-Insaf (‘PTI’).  The applicant claims that on one occasion in early 2013, while he was putting up his party’s posters in the street for a local election, some PML(N) supporters approached him to demand him to vote for their party, but when he refused as he supported PTI, they punched and kicked and threatened to kill him if he voted for PTI in the election.  The applicant ran into the same group of PML(N) supporters about one month later and he was punched and kicked again under the same threats.  Out of fear of further threats and harassments from those local PML(N) supporters, the applicant first left his home country to Dubai in November 2015, then returned to his home village in Pakistan.  He departed again in February 2016 for the Mainland and then later sneaked into Hong Kong. 

II.  The Director’s Decisions

4.  By a Notice of Decision dated 9 April 2018, the Director rejected the applicant’s claim on, torture risk , BOR 2 risk, BOR 3 risk, and persecution risk.

5.  The applicant appealed against the Director’s decisions to the Board.  An oral hearing was conducted on 14 December 2018.  Having considered all evidence, the Board had doubts that the applicant had any involvement in the 2013 elections, or that he was threatened or harmed during that time.  Although the Board was prepared to give the benefit of the doubt to the applicant, it did not accept that the applicant was threatened in 2015 when he returned to Pakistan once again, or that he left Pakistan because he had any genuine fear for his safety. The Board was not satisfied, having considered all of the evidence that the applicant would attract the adverse attention of any persons from opposite political parties upon his return to Pakistan.  Moreover, the Board was satisfied that it would be both reasonable and not unduly harsh for the applicant to relocate to another part of Pakistan even if his alleged attacks and threats in 2013 were to be accepted, as it appears these attacks were isolated to his home area and occurred over a relatively brief period of time.  The Board thus dismissed the appeal on 3 January 2019 as it was found that the applicant had not substantiated any of the applicable grounds under the USM. 

III.  The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 10 January 2019 for leave to apply for judicial review against the decisions of the Director and the Board based on the following grounds :

1)  The Director failed to appreciate state acquiescence in the applicant’s case;

2)  The applicant had tried to file a case at the police station after being attacked and injured by supporters of the PMLN, but the police officers were under PMLN control and refused, so there was misconduct on part of the Pakistan police;

3)  Public officials failed to provide reasonable protection for the applicant;

4)  The Director failed to take his above arguments into account or give sufficient weight to them before reaching the Decision;

5)  Alternative avenues to seek justice as listed in Paragraph 15 of the Director’s Decision are merely speculative;

6)  Corruption and incompetency of the Pakistan police are still extremely serious and unable to help members of the general public like the applicant;

7)  The decision of the Director was Wednesbury unreasonable; and

8)  The Adjudicator had failed to advise the applicant to obtain medical reports when deciding on the issue of the mental injuries suffered by the applicant in Pakistan as alleged .

IV.  The Judge’s decision

7.  The Judge was of the view that the applicant’s grounds were actually just broad and vague assertions with no specifics or particulars.  None of them were reasonably arguable for his intended challenge.  He agreed with both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and is not unreasonable or unsafe for him to relocate to other parts of Pakistan.  The case of TK v Jenkens & Anor [2013] 1 HKC 526 was cited.  Given that the Judge found no error of law or procedural unfairness in either of the decisions of the Director or the Board, or any failure on their part to apply high standards of fairness in their consideration of the applicant’s claim, the Judge was satisfied that there is no prospect of success in the applicant’s intended application for judicial review, and leave was refused on 22 July 2022.

V.      Grounds of intended appeal

8.  The applicant provided three grounds of appeal :

1)  The Judge had erred in law and fact in his refusal for leave to apply for judicial review on the basis that internal relocation would be reasonable and available for the applicant, as the suggested city of Karachi is considered by the applicant ‘one of the most dangerous cities in the world’ given its political problems;

2)  The Judge erred in law and fact in finding that the risk he faced is localized, and that internal relocation was reasonable;

3)  The Judge erred in law and fact in failing to consider whether the applicant had the financial means to relocate to another part of his home country.

9.  The applicant’s written submissions merely comprise of a compilation of various citations from case authorities with no elaboration or specification on how they are applicable to his case.

VI.     Analysis

10.  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].  

11.  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.  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.

12.  The applicant’s grounds in the present application are just bare assertions without particulars or evidence.  His contentions that the Judge failed to take into account all relevant circumstances, particularly regarding the reasonableness of internal relocation are without basis.  It should be noted that apart from the possibility of internal relocation and availability of state protection, the Director also took into consideration the level of risk of harm from the local PML(N) supporters, which is assessed to be low due to the low intensity and frequency of past ill-treatment from them, there is no evidence or reason for them to specifically target the applicant given that the evidence shows he was at most just an ordinary PTI supporter without any official post in the party.  It was clear that neither the Director nor the Judge saw that there would still be any adverse interest in him after all the years since he has left the country.  This, together with the presence of reasonable internal relocation alternatives, clearly shows that there is no justification to afford him with non‑refoulement protection in Hong Kong.

13.  The applicant has failed to show that there is any prospect of success in the intended appeal.  Therefore, the appeal is dismissed.