CACV 259/2022
[2022] HKCA 1650
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 259 OF 2022
(ON APPEAL FROM HCAL 1106 OF 2019)
____________________
| BETWEEN | | |
| | IQBAL MUDASSAR | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
____________________
Before: Hon Chow JA and K Yeung J in Court
Date of Judgment: 14 November 2022
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J U D G M E N T
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Hon K Yeung J (giving the Judgment of the Court):
1. The is an appeal[1] against the decision of Deputy High Court Judge KW Lung given on 23 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 9 April 2019 (the “Board”, and the “Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 4 April 2018 rejecting the applicant’s non-refoulement claim (the “Director”, and the “Director’s Decision”).
Background
2. The Applicant is a national of Pakistan. The Applicant entered Hong Kong illegally on 12 January 2016. He was arrested by the police on the same day. He was referred to the Immigration Department. By way of written representation on 15 January 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his girlfriend’s family due to their differences in background, social status and political beliefs. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.
3. By Notice of Decision dated 4 April 2018, 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 9 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision.
5. The Board set out the Applicant’s evidence at §§25-63 of the Board’s Decision. The Board then assessed in detail the Applicant’s evidence (§§64-97). The Board found that the Applicant’s versions of events were full of inconsistencies, and were not supported by any documentary evidence. While the Board considered independent country of origin information (“COI”) (§95), they only accepted that the Applicant is a Pakistani national and was outside his country of nationality. The Board was not satisfied that the Applicant’s claims were truthful, and found that he manufactured his claims and evidence in order to apply for non-refoulement protection and extend his stay in Hong Kong (§68). The Board did not accept the Applicant's claims that he had fallen in love with a young woman, that her family did not approve of the relationship, and that he was beaten or threatened with harm. For those reasons, the Board concluded that his claim for non-refoulement protection failed on all applicable grounds.
The Judge’s Decision
6. On 24 April 2019, the Applicant filed his Form 86 against the Board’s Decision.
7. On 23 June 2022, the Judge refused to grant leave to the Applicant to apply for judicial review. The main reasons are as follows:
“14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he did not want to leave Hong Kong as he had married here. However, he would accept whatever result the court may reach.
…
16. The applicant is unable to raise any valid reason to challenge the Board’s Decision.
17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”
8. Accordingly, the Judge dismissed the Applicant’s leave application.
Grounds of appeal
9. In his Notice of Appeal dated 29 June 2022, the Applicant seeks an Order that the Order of the Judge dismissing his leave application be set aside, and an Order that leave to apply judicial review be granted.
10. The Notice of Appeal states as the grounds of appeal only that:
“the gravity of my circumstances have noted [sic] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”
11. In his supporting affirmation dated the same date, the Applicant says relevantly only that:
“2. However, I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.
3. Additionally, I was informed that the Director of Immigration and the Adjudicator did not see the grounds to reserve their decisions.”
12. The applicant failed to comply with the directions made by the Registrar of Civil Appeals on 11 August 2022, repeated in the Notice of Hearing of 30 August 2022, requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.
13. The hearing date on 24 October 2022 has therefore been vacated. The appeal has been considered on paper based upon the materials before the Court.
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, COI 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 has failed, whether in his Notice of Appeal or supporting affirmation, to provide with any specificity any ground of appeal against the Judge’s Decision, not to mention any viable one.
17. The Applicant’s appeal has no merits. We accordingly dismiss the appeal.
(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 29 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.