CACV 163/2023, [2024] HKCA 517
On appeal from [2023] HKCFI 1276
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 163 OF 2023
(ON APPEAL FROM HCAL NO 915 OF 2019)
________________________
BETWEEN |
| | MD MOHAMMAD RIAZ | Applicant |
| | alias BASHIR AHMED | |
| | alias CHAUDHRY MUBSHAR AHMED | |
| | alias RIAZ MUHAMMAD | |
| | alias AHMAD NABEEL | |
| | and | |
| | Torture Claims Appeal Board / | Putative |
| | Non refoulement Claims Petition Office | Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | Interested Party |
________________________
| Before: | Hon Kwan VP and Lisa Wong J in Court |
| Date of Hearing: | 22 May 2024 |
| Date of Judgment: | 5 June 2024 |
________________
J U D G M E N T
________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 16 May 2023, Deputy High Court Judge K W Lung (“theJudge”) refused to grant leave for the applicant to apply for judicial review[1]. The intended judicial review sought to quash the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) rejecting his non-refoulement protection claim. On 29 May 2023, the applicant, acting in person, filed a Notice of Appeal against the Judge’s decision. A Supplementary Notice of Appeal was filed subsequently on 11 January 2024 by his legal representatives.
2. The applicant is a Pakistani national. He is 53 years old. He has travelled to Hong Kong several times using different identities since 1993. He claimed to have first entered Hong Kong on 1 September 1993 as a visitor, but was removed to Pakistan on 28 May 1994. He subsequently entered Hong Kong again in 1996 and 1997. On those two occasions, he was arrested, convicted and imprisoned for several offences and was deported to Pakistan in 1996 and 1998. He last entered Hong Kong on 9 October 1999 and has overstayed since 27 October 1999. On 5 September 2008, he was arrested by the police for breach of deportation order and breach of condition of stay by overstaying.
3. On 15 September 2008, he raised a torture claim[2] which was rejected by the Director of Immigration (“the Director”) on 18 November 2013. He petitioned against such rejection on 2 December 2013. On 3 May 2013, he filed a non-refoulement claim on essentially the same factual basis which was subsequently processed under the Unified Screening Mechanism (“USM”).
4. In gist, the applicant’s claims were made on the basis that if refouled, he would be harmed or killed by (i) members of the management committee of a Sunni mosque, (ii) the Pakistani police and (iii) other members of the community in his home village. His claimed fear of harm originated from his conversion from Sunni Muslim to Ahmadi Muslim. He was falsely accused of involvement in terrorist activities and drug trafficking because he had slapped Bholi Jatt, a person connected to a political figure in Pakistan. He was beaten and tortured by the three groups aforesaid on a number of occasions. A group looked for him when he was hiding in a loft and his friend was mistaken for him and was beheaded.
The decisions of the Director
5. As mentioned, the Director rejected the applicant’s torture claim in the Notice of Decision dated 18 November 2013 (“Director’s1stDecision”).
6. In the Director’s 1st Decision, the Director did not find any evidence indicating state involvement in the attacks, incidents of torture and ill-treatment inflicted by the religious leaders, the management committee of the Sunni mosque and other members of the community. The Director also found no evidence to show that the assaults by individual police officers on the applicant were initiated by any public officials or authorities of the Pakistani government. The Director considered that the acts or perceived risk of harm from the applicant’s enemies do not amount to torture as defined under section 37U(1) of the Immigration Ordinance (Cap 115). The Director further considered that reasonable state protection and internal relocation alternatives are available to the applicant in Pakistan. The Director had doubts on the credibility of his torture claim due to the applicant’s prolonged delay of 7 years in seeking protection after his last entry to Hong Kong via Thailand and also his repeated stays in his native home on his return to Pakistan in 1993, 1996 and 1999, despite the assaults and threats he allegedly faced.
7. As the applicant’s torture claim was already rejected, his non-refoulement claim was assessed under the USM on BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. By a Notice of Decision dated 31 July 2017 (“Director’s 2nd Decision”), the Director rejected the applicant’s non-refoulement claim on all applicable grounds other than torture risk[6].
8. In the Director’s 2nd Decision, the Director came to the view that the credibility of the applicant was further undermined. The applicant failed to explain properly why his religion on his passports was identified as Islam instead of Ahmadi, and why he used Pakistani passports of his true identity to travel Hong Kong in 1993 and 1999 but used false passports bearing another identity to travel on the other two occasions. He failed to provide evidence to support his alleged involvement in the Ahmadi community in Hong Kong. The Director proceeded to consider the applicant’s claim and found there was insufficient evidence to show that the perceived ill-treatment by his enemies is real and foreseeable upon refoulement. The Director held that on the basis of objective Country of Origin Information (“COI”), state protection is available in Pakistan and internal relocation alternatives are available and would further lower or negative the perceived risks.
The decision of the Board
9. The applicant appealed against the Director’s 1st Decision on 2 December 2013. On 5 March 2014, he sought leave to adjourn his torture claim appeal pending the Director’s determination of his non-refoulement claim on all applicable grounds other than torture risk. The Board allowed his application for adjournment.
10. On 4 August 2017, the applicant appealed against the Director’s 2nd Decision. The Board then considered both decisions of the Director in its determination.
11. The applicant attended the hearings before the Board on 14 and 19 December 2018. At the beginning of the hearing on 14 December, the applicant submitted a medical report issued on 7 December 2018 by Dr Yeung Kam Hing (“Dr Yeung”), a psychiatrist in Kowloon Hospital, to show the medical conditions of the applicant and the treatments he had been receiving. The Board noted from Dr Yeung’s report that although the applicant was diagnosed to have paranoid schizophrenia, he was in remission currently. Dr Yeung further stated that the applicant was physically and mentally fit and capable to give instructions to his legal representative Mr Mark Daly for his non-refoulement claim and fit to attend any conference or interview involving substantial periods of questioning and had the ability to respond to questions. Mr Daly also submitted to the Board that the applicant was fit to give evidence at the hearing and would be willing to answer questions. Based on the available evidence, the Board accepted that the applicant started to have mental problems in Pakistan back in the 1990s and that he had suffered from paranoid schizophrenia with symptoms of persecutory delusion, panic attack, auditory hallucination and poor sleep, but held that he was fit and capable to give evidence at the hearing.
12. In the appeal against the Director’s 1st Decision filed by the applicant’s legal representative in December 2013, a request was made for medical examinations to be arranged for the applicant with a forensic pathologist and a psychiatrist or clinical psychologist. In the hearing before the Board in December 2018, the legal representative maintained this request, for the purpose of proving the applicant to be a victim of the past incidents of torture or ill-treatments in Pakistan. The Board refused the applicant’s request for medical examinations.
13. The Board assessed the applicant’s case taking into account his medical conditions. The Board found that his evidence about his family background was vague, hesitant and lacked specificity, and that he failed to provide satisfactory explanation as to why he used two false passports identifying his religion as “Ahmedi” and two other passports in his real identity but identifying his religion as Islam. As such, the Board found that the applicant was not a credible witness.
14. The Board also found the applicant’s evidence relating to his Ahmadi faith problematic and inconsistent, such as his knowledge about the conditions of the bai’at (a fundamental tenet of his claimed faith), his knowledge about the interfaith marriage of his parents despite the restrictions on marriage of such type, and his practice of writing to the Khalifa (his religious teacher). The Board therefore did not accept that the applicant was genuinely an Ahmadi or a convert, or was perceived as such. On this basis and that the applicant failed to provide credible explanation for his incoherent and inconsistent accounts of events, the Board further rejected all the claimed past incidents of torture or ill-treatments. The Board considered there were no substantial grounds to believe that there would be any real and substantial risk of the applicant being harmed or killed as alleged upon refoulement and therefore rejected the appeal on 1 March 2019.
The intended judicial review and the Judge’s decision
15. The applicant filed a Form 86 and an affirmation on 3 April 2019 to seek leave to apply for judicial review against the Board’s decision. No ground of review was advanced by him. In his affirmation, he merely stated that he did not agree with the Board’s decision and he could not go back to his home country because his life would be in danger.
16. Since 9 February 2023, the applicant has been legally represented in the proceedings below by Daly & Associates. On 21 March 2023, he made ex parte applications for, among other things, leave to amend the Form 86.
17. In the draft amended Form 86 settled by counsel, the applicant raised four grounds for his intended challenge against the Board’s decision, which were summarised by the Judge as follows:
(1) Error of law in relinquishing supervisory role: failing to consider or adequately consider all the grounds of appeal specified by the applicant in his notices of appeal filed in 2013 and 2017 in the context of the case, and failing to give reasons or adequate reasons for rehearing the whole case.
(2) Undue reliance on the applicant’s religious knowledge: failing to follow accepted guidelines in putting forward questions concerning the applicant’s religious knowledge, and undue reliance on the applicant’s knowledge of religious doctrines in determining whether he was genuinely an Ahmadi.
(3) Erroneous credibility assessment: failing to follow accepted guidance on credibility assessment and making errors of fact by misinterpreting the applicant’s evidence on several critical aspects concerning his case.
(4) Unreasonable refusal of the applicant’s request for medical examination: failing to accede to a request for medical examination which may amount to procedural unfairness and/or breach of duty of high standards of fairness owed to the applicant.
The Judge’s decision
18. The applicant attended a hearing before the Judge on 17 April 2023. The Judge granted leave to amend Form 86 at the hearing and proceeded to consider all four grounds advanced in the amended Form 86 and the oral submissions by the applicant’s counsel Mr Jonathan Kwok.
19. Ground (1) failed as the Judge found that the Board had considered the grounds of appeal and made its decision to re-hear the case wholesale, and the Board was justified to do so. The grounds of appeal all concerned legal issues in the Director’s findings of fact of the applicant’s claims. The Judge took the view that the adjudicator, being a legal practitioner, should be in a better position than the immigration officer, who was acting on behalf of the Director, to address all those grounds by re-hearing the applicant’s evidence and making its own decisions, instead of dealing with the legal issues raised by the applicant. Ultimately, the Board’s finding of the facts would override the Director’s decisions and the facts of the claim would form the backbone of the applicant’s claims. There was no error of law and no procedural unfairness[7].
20. Ground (2) also failed as the Judge found it reasonable for the Board to test the applicant’s evidence to verify his assertions concerning his religious belief as an Ahmadi[8] and there was nothing amiss arising from the way the Board questioned the applicant about his claimed faith[9]. The Judge considered that the applicant’s complaints of the Board putting undue reliance on his religious knowledge in its analysis are without merit as it is clear that the Board had conducted a comprehensive review of the applicant’s evidence before it[10].
21. The Judge rejected ground (3) as assessment of evidence and finding of facts, including the applicant’s credibility, fall within the province of the Board[11]. The Judge dealt with each of the 7 issues raised by counsel under this ground. The Judge took the view the complaint that the approach adopted by Board in cross-examination departed from the rule in Browne v Dunn (1894) 6 R 67 (HL) cannot be justified. Unlike the case of Re Masud MD[2021] HKCA 1449 at §§31 to 36 in which the applicant was acting in person and had declined to answer the questions of the Board, the applicant was legally represented before the Board, had answered the questions put by the Board, and was legally protected in the hearing by Mr Daly[12]. The Judge found no basis to interfere with the Board’s assessment of evidence and findings of fact having regard to the relevant COI[13], the applicant’s responses to the Board’s questions and his demeanour at the hearing[14], and the materials before the Board[15].
22. As for ground (4), the Judge considered that the Board had given “strong and comprehensive reasons” in support of its decision to refuse the applicant’s request for medical examination[16]. The Judge found that there is no evidence to show the absence of a further medical report adopting the Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, published by the UNHCR (2022 edition) (“Istanbul Protocol”) had caused prejudice to the applicant[17].
23. Thus, the Judge concluded there is no realistic prospect of success in the intended judicial review and dismissed the leave application on 16 May 2023.
Grounds of appeal
24. The solicitors for the applicant filed a notice to act in this appeal on 16 August 2023. On 11 January 2024, his legal representatives filed a Supplementary Notice of Appeal. It is clear from counsel’s skeleton argument for the applicant lodged on 23 April 2024 that the grounds relied on in support of the present appeal are those in the Supplementary Notice of Appeal.
25. These grounds of appeal are all concerned with the Judge’s ruling regarding the Board’s refusal of the applicant’s request for medical examination pursuant to section 37ZC of the Immigration Ordinance (Cap 115) and may be summarised as follows:
(1) The Judge erred in holding that the applicant did not suffer any prejudice due to the Board’s refusal of his request for medical examination in accordance with the Istanbul Protocol and agreeing with the Board that in refusing the applicant’s request, he was entitled to rely on Dr Yeung’s report (“Ground 1”).
(2) The Judge erred in holding that the Board was entitled to its view in rejecting the applicant’s credibility, thereby failing to consider the probative value of a medical examination in accordance with the Istanbul Protocol, which would necessarily have been relevant to the assessment of the applicant’s credibility (“Ground 2”).
26. The Board and the Director take a neutral stance to this appeal and sought leave to be excused from attendance and have been duly excused.
27. At the hearing of the appeal on 22 May 2024, counsel for the applicant adopted the skeleton argument and relied on additional references in the Istanbul Protocol[18].
Legal Principles
28. 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 and Re Kartini[2019] HKCA 1022 at §13.
29. 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 the 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 (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.
30. An appeal against the refusal of leave is not the occasion for regurgitating arguments advanced and rejected by the judge. 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 made errors of law or failed to take account of relevant matters placed before the court or was otherwise plainly wrong.
31. 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.
Ground 1
32. Mr Francis Ngan[19] submitted for the applicant that Dr Yeung in his medical report focused solely on the applicant’s mental fitness in giving instructions and attending an interview, which is “forward-looking”. In compiling his report, Dr Yeung did not conduct medical examination in accordance with the Istanbul Protocol for the purpose of investigating the causes of both the mental and physical sufferings of the applicant in the past. He argued that in refusing the applicant’s request for medical examination, the Board erred in relying on Dr Yeung’s medical report which served a wholly different purpose from those of a report based on a medical examination in accordance with the Istanbul Protocol.
33. Mr Ngan also submitted that a medical examination on the applicant is justified as it would likely have provided the Board with independent evidence capable of supporting or corroborating the applicant’s claim that he was tortured or ill-treated in Pakistan which remains an issue in dispute. He relied on various references in the Istanbul Protocol for the usefulness of such a medical report in assessing the evidence of the applicant on his torture and ill-treatment. The Board’s refusal of the request for medical examination had deprived the applicant of the opportunity to adduce a crucial piece of evidence and the applicant had clearly suffered substantial prejudice. The Board effectively treated the medical evidence to be adduced as an “add-on”, which could be discarded at will, and had acted in breach of its duty of joint endeavour to investigate the applicant’s claim and its duty to make sufficient inquiry.
34. It would appear to us from the above that by and large the applicant seeks to re-argue his challenge against the Board’s refusal of his request for medical examination and to attack the merits of the Board’s decision, which have been dealt with by the Judge for the reasons set out at §§87 to 92 of his decision. As we have said before, the function of judicial review is not to provide a further avenue of appeal.
35. In any event, we agree with the Judge that the Board’s reasons set out at §§78 to 84 of the Board’s decision are valid in its refusal of the applicant’s request.
36. It is clear from the Board’s reasoning that the absence of a medical report prepared in accordance with the Istanbul Protocol would not necessarily mean that the past incidents as claimed by the applicant had not occurred[20]. The Board rejected the alleged past incidents because it had rejected that the applicant is genuinely an Ahmadi Muslim due to significant inconsistencies and contradictions in his evidence after carefully examining his evidence with reference to the relevant COI[21]. As stated clearly in §317 of the decision, as the Board has not accepted that the applicant is genuinely an Ahmadi, it does not accept the claimed past incidents. We are unable to see how a medical investigation conducted in accordance with the Istanbul Protocol would likely have provided the Board with evidence capable of supporting the applicant’s case that he is genuinely an Ahmadi or a convert, or was perceived as such. This aspect of the evidence is crucial to the applicant’s claim and it has nothing to do with torture or ill-treatment such that a medical examination might assist to provide “an interpretation as to the probable relationship of the physical and psychological findings to the possible torture or ill-treatment”[22]. This is entirely distinguishable from a situation where there is medical evidence corroborative of an applicant’s account of torture or mistreatment, such that it should be considered as part of the whole package of evidence and not treated as an “add-on” for subsequent assessment after a decision on credibility has been reached[23].
37. The Board went on to consider from §§318 to 398 the claimed past incidents and gave additional reasons in its analysis why it considered the applicant’s claim to be unbelievable and implausible, due to the different accounts provided and contradictory evidence of the claimed past incidents. These are additional reasons for rejecting the claimed past incidents, and do not detract from the earlier finding that the claimed past incidents are rejected owing to the rejection that the applicant is a genuine Ahmadi.
38. The Board found it unnecessary to accede to the request for medical examination when it found the applicant’s story claiming he is an Ahmadi unbelievable upon considering the totality of the evidence and in light of the long lapse of time since the occurrence of those past incidents over 20 years ago[24]. It is clear from section 37ZC of the Immigration Ordinance that the Board (and the Director) is not obliged or compelled to direct a medical examination on a claimant, but may do so as required by the circumstances of the case. The Board is well justified in its refusal of the applicant’s request in the present circumstances.
39. In support of his contention, Mr Ngan relied on YS v Torture Claims Appeal Board[2018] HKCFI 201, where leave to apply for judicial review was granted. Deputy High Court Judge Woodcock held that the Board, without considering a medical examination, erred in its finding that a non-refoulement claimant had not been subject to ill-treatment or conduct which attained the necessary minimum level of severity. YS is distinguishable as the judge’s finding was made on the basis that the Board came to its finding on the issue of severity of ill-treatment without thorough investigation, despite the scars on the claimant’s body and the physical problems shown from his fingers (at §30). In contrast, the Board in the present case had properly considered the need for medical examination and rejected it as the circumstances did not require it, and had investigated into the applicant’s case in detail on a thorough analysis of the evidence before it.
40. As for the complaints that the applicant suffered prejudice due to the Board’s refusal of his request for medical examination, this appears to us to be misconceived. The applicant was legally represented at all stages of the proceedings and had submitted to the Board not just Dr Yeung’s medical report but also other medical evidence dating back to 2012. He has been given ample opportunity to present his case and to adduce evidence before the Board. The Board was aware of the circumstances in which Dr Yeung’s report was compiled[25]. Although the Board had given weight to Dr Yeung’s medical report in assessing the applicant’s claim[26], its refusal of the request for medical examination was not based on Dr Yeung’s report alone, but for additional and different reasons as already explained.
41. The additional references in the Istanbul Protocol relied on by Mr Ngan do not advance the applicant’s case. It is important to have regard to the context and circumstances of the individual case for the decision-maker (the Board in this instance) to come to a view that it would be helpful and appropriate to arrange for a medical examination to be conducted in accordance with the guidance in the Protocol. The usefulness of such a medical examination is not unquestionable in all cases, it depends on the particular circumstances of each case. In this instance, memory difficulties would not explain adequately or at all the applicant’s evidence concerning his claimed faith and conversion, which allegedly gave rise to torture and ill-treatment.
42. For all the above reasons, we do not think Ground 1 is reasonably arguable.
Ground 2
43. Mr Ngan contended that if a medical report has been prepared in accordance with the Istanbul Protocol, it would have likely provided some reasonable explanation as to the applicant’s behaviour while giving evidence before the Board and as regards the quality of his oral evidence which the Board found problematic and damaging to his credibility. It was submitted that had the Board taken all the evidence in the round and applied the benefit of the doubt, the Board would have likely found that the applicant is a genuine Ahmadi Muslim.
44. We are inclined to think that the above is simply speculative. It does not appear to us that Ground 2 is reasonably arguable. On the medical evidence and the submission by the applicant’s lawyer, which was accepted by the Board, the applicant was fit to attend the hearing and give evidence before the Board[27]. In assessing the applicant’s claim, including his credibility, the Board duly took into account his medical conditions and diagnosis[28]. From the account given in the Board’s decision, it would appear that the applicant could properly understand the questions asked by the Board and give responses[29] and in some instances the Board had repeated the questions and some of his responses to assist him to focus on the questions[30]. The Board was not persuaded by the applicant’s testimony in its evaluation of the totality of the evidence. This is an exercise which falls within the province of the Board. There is no basis for this court to interfere with the Board’s decision merely because of the absence of a medical report which may or may not provide some explanation to the inconsistencies or contradictions found by the Board in its evaluation of the evidence before it.
45. In summary, we agree with the Judge there is no error of law, procedural impropriety or irrationality in the decision of the Board.
46. No viable grounds have been put forward to reverse the decision of the Judge. We therefore dismiss the applicant’s appeal.
(Susan Kwan)
Vice President | (Lisa Wong)
Judge of the Court
of First Instance |
Mr Francis Ngan and Mr Jonathan Kwok, instructed by Daly & Associates, for the Applicant (Appellant)
The Putative Respondent and the Putative Interested Party, attendance excused
[1] [2023] HKCFI 1276
[2] This refers to a claim made under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which was taken by the Immigration Department to be a torture claim made under Schedule 4 of the Immigration Ordinance (Cap 115).
[3] This refers to a risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] This refers to a 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.
[6] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[7] [2023] HKCFI §42
[8] [2023] HKCFI §47
[9] [2023] HKCFI §§48 to 51
[10] [2023] HKCFI §52
[11] [2023] HKCFI §§69, 78
[12] [2023] HKCFI §§82 to 86
[13] [2023] HKCFI §59
[14] [2023] HKCFI §§61, 62, 66, 72
[15] [2023] HKCFI §74
[16] [2023] HKCFI §89
[17] [2023] HKCFI §92
[18] Chapter III (Legal investigation of torture and ill-treatment), §§185, 188, 190, 199, 229, 230; Chapter V (Physical evidence of torture and ill-treatment), §§396, 399, 425; Chapter VI (Psychological evidence of torture and ill-treatment), §§514, 521, 547, 563, 565
[19] With Mr Jonathan Kwok
[20] The Board’s decision, §83
[21] The Board’s decision, §§170, 171, 178, 244, 316
[22] Istanbul Protocol, §§379, 417
[23] SA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1302 at §32
[24] The Board’s decision, §81
[25] The Board’s decision, §59
[26] The Board’s decision, §79
[27] The Board’s decision, §§59, 60
[28] The Board’s decision, §64
[29] The Board’s decision, §68
[30] The Board’s decision, §348