CACV 366/2022
[2023] HKCA 23
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 366 OF 2022
(ON APPEAL FROM HCAL NO 694 OF 2019)
________________________
BETWEEN
| | KHAN MUHAMMAD SHAWAIZ | Applicant |
| | And | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | And | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
| Before: | Hon Kwan VP and Fung J in Court |
| Date of Judgment: | 30 January 2023 |
________________________
J U D G M E N T
________________________
Hon Fung J (giving the Judgment of the Court):
1. On 2 September 2022, Deputy High Court Judge K W Lung refused to grant leave for the Applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1]. The Applicant file a Notice of Appeal against the said decision on 6 September 2022[2].
2. The Applicant is a national of Pakistan. He is 31 years old[3]. He entered Hong Kong illegally on 15 June 2014 and was arrested by the police on 16 June 2014. On 30 December 2014, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the Pakistani police for a false murder case and by the family members of the victim.
The decisions of the Director and the Board
3. By a Notice of Decision dated 31 August 2015, the Director of Immigration (“the Director”) rejected the Applicant’s non-refoulement claim on torture risk[4], BOR 3 risk[5] and persecution risk[6].
4. The Director found that the Applicant failed to adduce evidence to suggest that the Pakistani police had apply any false charge on him and that the family of the deceased had threatened to harm him[7]. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates any perceived risk[8].
5. The Applicant failed to attend the hearing of his appeal against the Director’s decision before the Board on 16 August 2016. The secretariat staff of the Board tried to contact the Applicant by phone, but of no avail. The Board therefore decided to proceed to consider the appeal on paper[9]. The Board considered that there is no evidence of injury which was severe pain and physical or mental suffering reaching the required minimum level of severity and the Applicant also failed to establish substantial grounds showing a foreseeable and real risk in the future[10]. The Board further found that there is no evidence of harm or threat of harm instigated by a state agent in the Applicant’s case[11]. In addition, having considered the country of origin information and in view of the fact that the Applicant had lived safely in Gilgit City for 5 months, the Board assessed that state protection is reasonably available to victims of crime in Pakistan[12] and the Applicant can safely relocate to other places in Pakistan without undue hardship[13]. The Board concluded that the Applicant is a self-confessed fugitive from legal sanction for murder who tried to hide his tracks by sneaking illegally into Hong Kong and has failed to establish a case for non-refoulement[14]. Thus, the Board rejected the appeal on 2 March 2017.
6. On 24 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[15] in case he has omitted any relevant facts in relation thereto before. By a Notice of Further Decision dated 18 October 2017, the Director rejected the Applicant’s claim on all applicable grounds including on BOR 2 risk in the absence of response from him to the said invitation.
7. The Applicant appealed against the Director’s further decision out of time on 23 February 2018. The Board considered that the Applicant does not have any reasonable explanation for the long breach of time and rejected the Applicant’s late filing of appeal on 21 December 2018[16].
The intended judicial review
8. The Applicant filed a Form 86 and an affirmation on 12 March 2019 to seek leave to apply for judicial review against the decision of the Board without putting forward any grounds for his intended challenge[17].
The judge’s decision
9. DHCJ K W Lung dealt with the application on paper as the Applicant did not request for an oral hearing[18].
10. The judge considered that the Applicant did not have any valid reason to challenge the Board’s decision and held that there is no error of law or procedural unfairness in the Board’s decision. As the Applicant failed to show any realistic prospect of success in his intended judicial review, the judge dismissed the leave application on 2 September 2022.
Grounds of Appeal
11. In the Notice of Appeal filed on 6 September 2022, the Applicant stated the following grounds of appeal:
(1) The judge had failed to consider all applicable grounds of non-refoulement claims and in particular the grounds of risk of violation of Articles 2 and 22 of the Hong Kong Bill of Rights;
(2) The judge was wrong in accepting the Board’s finding that “the only fact established is that the Applicant is a Pakistani male, he faces no risk of any harm at all” to conclude that the persecution risk failed;
(3) The finding by the judge that the Board’s decision to be without fault was irrational.
Non-compliance with order for lodging of skeleton argument
12. Directions were given by the Registrar of Civil Appeals on 7 October 2022 for the Applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the Applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper. The Registrar has also made it clear that the hearing date fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.
13. The appeal was scheduled to be heard on 4 January 2023. The Applicant failed to lodge skeleton argument by the prescribed deadline on or before 7 December 2022. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the Applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal by letter dated 19 December 2022.
Legal Principles
14. 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.
15. 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 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.
Analysis and disposition
16. In this appeal, the Applicant failed to identify any errors of law, procedural unfairness or irrationality in the decision of the Board. The Applicant also failed to demonstrate that the judge had made errors of law, failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. In particular, the Applicant’s intended judicial review was targeted at the Board’s decision dated 21 December 2018, in which the Board refused to extend time for the Applicant to bring an appeal without assessing the individual grounds of the Applicant’s non-refoulement claims. There is no basis for the Applicant to challenge the Board’s conclusion on persecution risk in that decision which is a nonexistence. In any event, the Board had already properly considered the Applicant’s claim on persecution risk in its earlier decision on 2 March 2017 and found that the Applicant has not suffered severe injury or serious harm which would place him within the criteria of persecution. The Applicant failed to adduce any evidence to refute the Board’s finding.
17. Besides, the Applicant did not give any particulars or elaboration regarding the alleged irrationality of the judge’s finding. His ground on irrationality is just bare assertion without any basis.
18. For the above reasons, the Applicant’s grounds of appeal are devoid of merit. Thus, the appeal should be dismissed.
| (Susan Kwan) | (Barnabas Fung) |
| Vice President | Judge of the Court
of First Instance |
The Applicant (Appellant), acting in person
[1][2022] HKCFI 2708; See [6-10]
[2] [1-3]
[3] Note: App will become 31 years old on 14 January 2023
[4] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[5] This refers to 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).
[6] 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.
[7] §§36-37 Immd 1
[8] §§39-43 Immd 1
[9] §4 [14-15]
[10] §14[17]
[11] §8 [16]
[12] §19vi [19]
[13] §21 [21]
[14] §36 [24]
[15] 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).
[16] [27-28]
[17] See [11-12]
[18] §2 [6]