CACV 253/2022
[2022] HKCA 1649
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 253 OF 2022
(ON APPEAL FROM HCAL 2157 OF 2018)
_____________________
| BETWEEN | | |
| GHAFFAR MUHAMMAD | Applicant |
| and | |
| TORTURE CLAIMS APPEAL BOARD | Putative Respondent |
| and | |
| DIRECTOR OF IMMIGRATION | Putative Interested Party |
_____________________
Before: Hon Chow JA and K Yeung J in Court
Date of Hearing: 24 October 2022
Date of Judgment: 14 November 2022
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J U D G M E N T
_________________
Hon K Yeung J (giving the Judgment of the Court):
1. The is an appeal[1] against the decision of Deputy High Court Judge Bruno Chan given on 17 June 2022 refusing leave to the Applicant to apply for judicial review (the “Judge” and the “Judge’s Decision”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 14 August 2018 (the “Board”, and the “Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 18 January 2017 rejecting the applicant’s non-refoulement claim (the “Director”, and the “Director’s Decision”).
Background
2. The Applicant is a national of Pakistan. He last entered Hong Kong illegally on 9 January 2016. He was in possession of a Pakistani passport. He surrendered himself to the Immigration Department on 18 January 2016. He subsequently raised a non-refoulement claim, claiming that if he returned to Pakistan he would be harmed or killed by terrorists and their supporting party, a political party called Pakistan People’s Party (“PPP”) because of certain prior events, and because he was a member of another party called Jammu Kashmir People’s National Party. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.
3. By Notice of Decision dated 18 January 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].
4. The Applicant appealed against the Director’s Decision. On 14 August 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision.
5. The Board’s reasons for dismissing the appeal are summarised by the Judge as follows (§9 of the Judge’s Decision):
“In its decision the Board accepted the Applicant’s claims of events occurred in Pakistan prior to his last departure of the country but found even on his own case at the highest that there was no evidence of any threats or ill-treatment against the Applicant by the PPP people or any evidence that he had been specifically targeted by them or anyone in his country for any reason, and that in any event in the absence of any official involvement that state/police protection would be available to the applicant if needed upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”
The Judge’s Decision
6. On 8 October 2018, the Applicant filed his Form 86 and affirmation in support and sought leave to apply for judicial relief against the Board’s Decision.
7. No ground for relief is stated in the Form 86. In his affirmation in support, all he has stated is his belief that the “petition teams” rejected his claims because he was unable to submit supporting documents, that he needs time to do so, and that he will try his best to submit them to court as soon as possible.
8. For reasons set out in the Form CALL-1 of 17 June 2022, the Judge refused to grant leave to the Applicant to apply for judicial review. The reasons are as follows:
“10. On 8 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his affirmation or his subsequent written submissions, nor did he attend the hearing of his application without any explanation. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge
11. 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 the 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 the Director and the Board as they 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.
12. In the Applicant’s case, the fact is that it has been correctly established by 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 that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
13. 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.”
9. The Judge accordingly dismissed the Applicant’s leave application.
Grounds of appeal, and the appeal
10. In his Notice of Appeal dated 27 June 2022, the Applicant seeks an order that the Order of the Judge dismissing his leave application be set aside, and that leave to apply for judicial review be granted.
11. As his grounds of appeal, the Applicant states that he was unable to submit his supporting documents during his interviews, but that if he goes back to his country, his life will become uncertain, and that he would explain in his oral hearing.
12. In his 2-page written submissions received on 20 August 2022, the Applicant states that he still has problems if he is to be refouled back to his country, that his life would become uncertain, that PPP is very dangerous, that many times he has been tortured and hospitalised, that he was unable to submit supporting documents, and that his family would also be in trouble if they were to help him get the documents. He requests for a solution for his life protection.
13. During the hearing, apart from saying that he was still trying to find the supporting documents, he added nothing further to what he had filed.
Discussion
14. 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
15. In general, the assessment of evidence, country of origin information materials, 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: Re Kartini[2019] HKCA 1022.
16. The Applicant failed to put forward any grounds for relief in his Form 86. The Judge nonetheless considered the Board’s Decision. He concluded that there was no error of law or procedural unfairness in either the Director’s Decision or the Board’s Decision. The Applicant now seeks to appeal against the Judge’s Decision. But whether in the Notice of Appeal or in his submissions, the Applicant has failed to raise any viable ground of appeal suggesting why the Judge is in any way wrong in the Judge’s Decision.
17. The Applicant’s appeal has no merits. We accordingly dismiss the same.
(Anderson Chow)
Justice of Appeal | (Keith Yeung)
Judge of the
Court of First Instance |
The Applicant, acting in person.
[1] By Notice of Appeal filed on 27 June 2022.
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] 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.