CACV 290/2022
[2023] HKCA 269
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 290 OF 2022
(ON APPEAL FROM HCAL NO 1074 OF 2019)
________________________
BETWEEN |
| | AKHTAR MUHAMMAD SAEED | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/ | Putative |
| | NON-REFOULEMENT CLAIMS PETITION OFFICE | Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
_____________________
| Before: | Hon Chow JA and S T Poon J in Court |
| Date of Judgment: | 8 March 2023 |
_____________________
J U D G M E N T
_____________________
Hon Chow JA (giving the Judgment of the Court):
1. On 28 July 2022, the Applicant filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 15 July 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 19 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 May 2017 rejecting his non-refoulement claim.
BACKGROUND
2. The Applicant is a national of Pakistan. He entered Hong Kong illegally on 10 November 2007 and was arrested by the Police on the same date. On 3 December 2007, he lodged a torture claim[1], which was later rejected on 24 May 2013. He then made a non-refoulement claim by way of written representation via his duty lawyer’s letter of 30 May 2013. The Applicant based his claim on an alleged fear that, if refouled, he would be harmed or killed by Safir, a member of the Pakistan Muslim League Q, because of a land dispute. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form. His claim was taken as a non-refoulement claim and assessed on all applicable grounds other than the risk of torture.
3. By a Notice of Decision dated 9 May 2017, the Director dismissed the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s decision to the Board. On 19 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:
“Having considered the evidence, the Board made the following findings. It noted that the applicant was not the owner of the land. While it was plausible that there was a land dispute, it considered that such dispute would not [give rise] to a serious risk of harm to the applicant. Taking the applicant’s evidence to the highest, it found that the applicant was only bullied and mildly injured and the alleged harm from Safir was mostly verbal threats [49]. The Board also observed that the applicant presented false evidence [50] and that his conducts and past immigration history and convictions in Hong Kong might also damage his credibility [51]. Nevertheless, even accepting the applicant’s evidence, the Board still concluded that he failed to establish his non-refoulement claim.”
THE JUDGE’S DECISION
5. On 23 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, the Applicant merely stated the following:
“I would like to reject and review the decision made by Immigration Department on my case. They disregard my dangerous situation. Please see Exhibit ‘A’”.
“Exhibit A” was a copy of the Board’s Decision.
6. On 15 July 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[13] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).
[14] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
[15] In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13. (1) … …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.’
[16] The ground in his affirmation above is not a 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.
[18] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”
THIS APPEAL
7. In his Notice of Appeal dated 28 July 2022, the Applicant put forward the following 5 grounds of appeal:
(1) The Judge dealt with his application for leave to apply for judicial review on paper without an oral hearing.
(2) The Board was wrong to find that State protection would be available to the Applicant.
(3) The Board failed to properly assess the Applicant’s claim.
(4) The Board erred in law and misled the Judge into dismissing the Applicant’s application for leave to apply for judicial review.
(5) The Board’s Decision was irrational.
8. The Applicant has failed to lodge any skeleton argument in support of his appeal in accordance with the directions given by the Registrar of Civil Appeals on 23 November 2022. Accordingly, the Applicant is deemed to have waived his right to have an oral hearing of the appeal, and elected to have the appeal disposed of on paper. Having considered the papers before us, we consider that it is appropriate to determine the present appeal on paper without an oral hearing, notwithstanding the Applicant’s request for an oral hearing in the Notice of Appeal.
DISCUSSION
9. In respect of Ground 1, since the Applicant did not request for an oral hearing of his application for leave to apply for judicial review in the Form 86, the Judge was entitled, in the exercise of his discretion, to determine the leave application on paper without an oral hearing pursuant to Order 53, r 3(3) of the Rules of the High Court (Cap 4A). In view of the fact that no proper ground of judicial review was disclosed in either the Form 86 or the Applicant’s supporting affirmation for his application for leave to apply for judicial review, the Judge’s decision to determine the application on paper cannot be faulted.
10. As for the rest of the grounds of appeal (ie Grounds 2 to 5), the Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).
11. Since the Applicant did not put forward the matters now relied upon (ie those referred to in Grounds 2 to 5) in support of the application for leave to apply for judicial review, they were not dealt with by the Judge. Generally speaking, it is not open to a non-refoulement claimant to rely on new ground(s) of application for leave to apply for judicial review of a decision of the Board for the first time in the Court of Appeal. Otherwise, the appeal will be turned into an occasion for a fresh hearing of the leave application by the Court of Appeal. As mentioned above, it is not the function of the Court of Appeal to examine the decision of the Board afresh. There is no good reason to depart from this general rule in the present case.
12. In any event, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. We are not satisfied that any such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
13. The Applicant has failed to point to or show any error in the Judge’s decision of 15 July 2022, and has failed to raise any viable ground of appeal against the Order.
14. The Applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal | (S T Poon)
Judge of the Court of
First Instance |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] 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.