Case Detail

CACV 342/2023, [2024] HKCA 1051

On appeal from [2023] HKCFI 2721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 342 OF 2023

(ON APPEAL FROM HCAL NO 721 OF 2017)

________________________

BETWEEN
	Saeed Nadeem	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Lisa Wong J in Court

Date of Judgment:

18 November 2024

________________________

J U D G M E N T

________________________

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

1. This is an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 February 2024 ([2024] HKCA 152). The Court of Appeal dismissed the applicant’s appeal against the decision of Fung J dated 18 October 2023 refusing to grant leave for the applicant to bring judicial review against the decision of the Torture Claims Appeal Board concerning his non‑refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 23 February 2024. It was further directed that the notice of motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant has not lodged any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Analysis and Disposition

3. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

4. In the notice of motion filed on 9 February 2024, the applicant only stated that he wants to go to the Court of Final Appeal as he did not get justice from the High Court and the Court of Appeal, without putting forward any specific grounds of appeal. He failed to identify any particular mistakes in the Court of Appeal’s decision or 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).

5. Therefore, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 9 February 2024.

(Susan Kwan)
Vice President

(Lisa Wong)
Judge of the Court of First Instance

The Applicant (Appellant), acting in person

CACV 342/2023, [2024] HKCA 152

On appeal from [2023] HKCFI 2721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 342 OF 2023

(ON APPEAL FROM HCAL NO 721 OF 2017)

________________________

BETWEEN
	Saeed Nadeem	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Lisa Wong J in Court

Date of Hearing:	30 January 2024
Date of Judgment:	8 February 2024

________________________

J U D G M E N T

________________________

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

1. On 18 October 2023, Fung J refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim [1]. The applicant filed a notice of appeal against the said decision on 26 October 2023.

2. The applicant is a national of Pakistan. He had previously entered Hong Kong on 23 June 2001 and was subsequently arrested by the police for overstaying. He was eventually repatriated to Pakistan on 28 August 2001. He last entered Hong Kong illegally on 20 August 2007 and was arrested by the police on 27 September 2007. He raised a torture claim on 23 October 2007 which was rejected on 24 July 2013 by the Director of Immigration (“the Director”). He then lodged a non-refoulement claim on 8 August 2013. His claim was made on the basis that he would be harmed or killed by his ex-brothers-in-law and supporters of the political party Pakistan Muslim League (N) (“PMLN”) if he should return to Pakistan as he supports their rival Pakistan People’s Party (“PPP”).

The decisions of the Director

3. As the applicant’s torture claim had already been rejected, his non-refoulement claim was assessed on BOR 3 risk[2] and persecution risk[3].

4. By a Notice of Decision dated 19 August 2016, the Director rejected the applicant’s claim. Taking into account the low intensity and frequency of past ill-treatment from the applicant’s ex-brothers-in-law and/or members of PMLN, the Director assessed that the level of future risk of harm is low[4]. The Director further considered that whatever adverse interest that the ex-brothers-in-law and/or members of PMLN might have against the applicant should have subsided due to the long lapse of time and the fact that the applicant is no longer holding any active role in PPP. The Director also held that the availability of state protection and internal relocation alternatives in Pakistan further lowers or negates the perceived risk.

5. On 28 February 2017, the Director invited the applicant to submit additional facts which he considers relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[5] in case he has previously omitted any relevant facts in relation thereto. By a Notice of Further Decision dated 16 March 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk in the absence of response from him to the aforesaid invitation.

The decision of the Board

6. The applicant appealed against the Director’s decisions to the Board. He attended the hearing before the Board on 24 April 2017. The Board assessed that the applicant should be able to remain safe from either his ex-brothers-in-law or members from the PMLN if he relocates to an area far away from his home town. The Board also found that the previous ill-treatment had not attained the requisite minimum level of severity and there is no evidence showing that the applicant will be at risk of harm from the Pakistani government that would place his life at risk. The Board concluded that the applicant’s claim of fear has not been established and dismissed the appeal on 29 September 2017.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 6 October 2017 to seek leave to apply for judicial review against the Board’s decision. He stated the following grounds in his affirmation:

(1)  It was wrong to say as he had not been subjected to any severe pain in the past so it is unlikely he would be subjected to any severe pain or suffering in the future.
(2)  In fact, he had been intentionally assaulted by his enemies and suffered severe head injuries and has a very visible scar on his chest.
(3)  His ex-brothers-in-law are connected to the PMLN which is a ruling party in Pakistan.
(4)  Even if he relocates to another part of Pakistan, his ex-brothers-in-law are able to find him easily due to their family ties.
(5)  He cannot spend his whole life in hiding and live under constant fear of death.

The judge’s decision

8. The applicant attended a hearing before Fung J on 27 September 2023. The judge found that the applicant’s grounds and submissions are just broad and vague assertions without necessary or relevant particulars or specifics or elaboration. The judge found no merits in the intended judicial review, as there is no error of law or irrationality or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the applicant. Thus, the judge dismissed the leave application on 18 October 2023.

Grounds of appeal

9. In the notice of appeal filed on 26 October 2023, the applicant stated that his grounds of appeal are that the gravity of his circumstances has not been weighed or realized by the putative respondents and he should be given an opportunity to plead his case properly.

10. In his written submissions lodged on 21 December 2023, he contended that:

(1)  the Board made many errors;
(2)  the court did not consider his arguments and did not give him an oral hearing; and
(3)  the court failed to find the errors of the Board and the judgment was wrong.

Legal principles

11. 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.

12. 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 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.

13. 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.

Analysis and disposition

14. The applicant’s grounds and submissions in this appeal are just bare assertions without basis. Contrary to his submissions, the court had held a hearing on 27 September 2023. Besides, the applicant has not provided any evidence or particulars to show that the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15. No viable ground has been put forward to reverse the decision of the judge. We therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Lisa Wong)
Judge of the Court
of First Instance

The Applicant (Appellant), acting in person

[1] [2023] HKCFI 2721

[2] This refers to the 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).

[3] 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.

[4] §15 Immd 1

[5] 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).

SAEED NADEEM v. TORTURE CLAIMS APPEAL BOARD

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