CACV 538/2020
[2021] HKCA 694
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 538 OF 2020
(ON APPEAL FROM HCAL 180/2018)
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| RE: | NAWAZ KHAN QURESHI | Applicant |
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Before: Hon Barma JA and Lisa Wong J in Court
Date of Hearing: 10 May 2021
Date of Judgment: 21 May 2021
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 6 May 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 1 February 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 31 March 2015 and 1 June 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Pakistan. He entered Hong Kong on 22 April 2004 as a visitor and was permitted to remain until 6 May 2004. He overstayed and was arrested on 3 May 2008. He lodged a non-refoulement claim on 12 May 2008.
3. The applicant’s claim was based on threats from the relatives of his wife. The details of the applicant’s claim have been summarised by the judge at [1] to [9] of the CALL-1 Form.
4. By a Notice of Decision dated 31 March 2015 (“the Director’s First Decision”), the director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].
5. By a Notice of Further Decision dated 1 June 2017, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.
6. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 3 October 2016 and 1 March 2017, the Board dismissed the appeal on 1 February 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.
7. At [41] of the Board’s Decision, the Board found that the applicant’s case was not credible. The Board also held at [66] that there was nothing to show that the government of Pakistan would not provide protection to the applicant.
The judge’s decision
8. The applicant filed a Form 86 on 7 February 2018 which contained no ground for seeking relief.
9. In his affirmation in support of the leave application dated 7 February 2018, the applicant deposed:
“to appeal and review and to reject the decision made by [the Director] against my claim. They disregard my dangerous situation.”
10. The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.
11. After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [17] to [21] of the CALL-1 Form:
“17. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for them who are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.
18. In the Applicant’s case, the Board rejected his claim based on its adverse finding on his credibility for the detailed and thorough analysis and reasoning set out in paragraphs 35 – 49 of its decision and with the benefit of hearing him in oral evidence and answers to questions raised of his claim as well as the evidence of his own witness which contradicted his case, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
19. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.
20. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.
21. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”
Grounds for appeal
12. The applicant was late in bringing the intended appeal. After considering the explanation offered by the applicant and the situation of the postal service and the High Court Registry, the judge granted extension of time to appeal on 29 September 2020.
13. In the Notice of Appeal dated 5 October 2020, the applicant contended that:
“the court judge refused my appeal but he have no judgment he just follow adjudicator decision”
14. In his skeleton submissions dated 7 April 2021, the applicant summarized the events giving rise to his claim for non-refoulement protection. He submitted that the Director, the Board and the judge dismissed his claim but he will be killed upon returning to Pakistan.
15. The applicant agreed by a letter of 5 October 2020 that the appeal could be heard by two judges. The appeal was to be heard on 10 May 2021, but the applicant failed to appear dispute having been informed of the hearing date. We will therefore deal with his appeal on the basis of the materials before us.
Discussion
16. The applicant claimed that the judge simply followed the Board’s Decision and did not use his own judgment. In [17] – [21] of CALL-1 Form, the judge found that the applicant failed to identify any public law error in the Board’s Decision. The judge also considered the decisions of the Director and the Board with rigorous examination and anxious scrutiny and did not find any public law error in those decisions. The applicant did not put forward any basis for his belief that the judge simply followed the Board’s Decision and this ground is therefore entirely without merit.
17. As for the applicant’s assertion that it is unsafe for him to return, we note that the Board dismissed his claim on the ground that his claim for non-refoulement protection was not credible. Like the judge, we do not accept that the applicant has established any public law error in the Board’s Decision and this ground is therefore also without merit.
18. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
(AARIF BARMA)
Justice of Appeal | (LISA WONG)
Judge of the Court of
First Instance |
The applicant, unrepresented, absent
[1] 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.
[2] 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.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.