CACV 266/2023，[2024] HKCA 15
On Appeal From [2023] HKCFI 2076
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 266 OF 2023
(ON APPEAL FROM HCAL NO 824 OF 2019)
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BETWEEN |
| | Rehmat Khan | Applicant |
| | and | |
| | Torture Claims Appeal Board/
Non-refoulement Claims Petition Office | Putative
Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | Interested Party |
_______________
| Before: | Hon Au JA and Ng J in Court |
| Date of Hearing: | 5 December 2023 |
| Date of Judgment: | 12 January 2024 |
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J U D G M E N T
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Hon Ng J (giving the Judgment of the Court):
1. This is an appeal by the Applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 23 August 2023, by which the Deputy Judge refused the Applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 2076).
2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 25 February 2019 (“the Board’s Further Decision”) as well as the decision of the Director of Immigration (“the Director”) dated 15 August 2017 rejecting the Applicant’s non-refoulement claim on the basis of BOR2 risk[1] (“the Director’s Further Decision”).
3. We heard the appeal on 5 December 2023. After the hearing, we reserved our judgment to be handed down in writing, which we do now.
Background
4. The Applicant is a national of Pakistan. He entered Hong Kong from Mainland China illegally on 11 November 2015 and surrendered to the Immigration Department on 16 November 2015. On 21 January 2016, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by Saqib and his accomplices. Factual details of the Applicant’s claim were summarised by the Deputy Judge at [5] to [6] of the Leave Decision. In brief, the Applicant said he had witnessed the murder of his friend by Saqib and his subordinates in December 2009 in his shop. On the day of the murder, he was brought to the police station as a witness and was told by the police that they might need him to identify the suspects afterwards. The Applicant claimed he was later hit by a car which took him 5 to 6 months to recover. After that, he said he started receiving threats on the phone by Saqib. He believed the car accident and the threats were perpetrated by Saqib to prevent him from attending the police identification parade.
5. By a Notice of Decision dated 1 September 2016 (“the Director’s First Decision”), the Director rejected the Applicant’s non‑refoulement claim. That decision covered the following grounds ie torture risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated. By the Director’s Further Decision dated 15 August 2017, the Applicant’s claim on the basis of BOR2 risk was also dismissed.
6. The Applicant appealed against the Director’s First Decision to the Board. The Board found there was no evidence to suggest that the car accident referred to above was perpetrated by Saqib. The Country of Origin Information (“COI”) further showed that police protection would be sufficient and that internal relocation would be a viable option. Accordingly, the Board found that his non-refoulement claim failed and dismissed his appeal against the Director’s First Decision on 16 May 2017 (“the Board’s First Decision”). The Applicant did not apply for leave to apply for judicial review against the Board’s First Decision.
7. The Applicant then petitioned against the Director’s Further Decision to the Board on 29 August 2017. The Board determined his petition on paper. In the Board’s Further Decision, the Board essentially took the view that the Applicant only repeated his allegations that he would be harmed or even killed if refouled without filing any additional evidence. The Applicant’s allegations and fears of being harmed or killed had already been thoroughly canvassed and was not established. Accordingly, after considering the evidence, the Board also dismissed his non-refoulement claim on the basis of BOR2 risk.
The Leave Decision
8. On 26 March 2019, the Applicant filed his Form 86 for leave to apply for judicial review against the Board’s Further Decision dated 25 February 2019 as well as the Director’s Further Decision dated 15 August 2017. In the Form 86, the Applicant raised various grounds of review (i) referring to the Director’s and the Board’s alleged failures as well as (ii) making some general assertions about him having been tortured by the Police and other law enforcement agencies in Pakistan and the state’s failure to provide reasonable protection for its citizens. As summarised by the Deputy Judge at [14] of the Leave Decision, they are:
(1) The Board failed to consider state acquiescence.
(2) The Board did not give him the chance to arrange relevant evidence, bearing in mind that he was in custody at the immigration detention centre.
(3) He was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as those in the high ups of the political circles.
(4) The state should be liable to the Applicant for failing to provide reasonable protection to him.
(5) The Board did not give sufficient weight to his argument, in particular, his evidence that the state is unable to provide protection to him.
(6) The Board referred to the COI. But it had its pre-conceived conclusion and it is unfair to him. In fact, corruption and incompetence of the administration in his country is still a very serious problem.
(7) The Board had failed to attained high standards of fairness in the dealing of his application.
9. The Deputy Judge heard the matter on 11 January 2023. The Applicant attended the oral hearing and was assisted by a Hindi/ Punjabi interpreter.
10. By the Leave Decision, the Deputy Judge refused to grant leave to the Applicant to apply for judicial review. His reasons were set out at [15] to [22] of the Leave Decision:
“15. 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).
16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong because it did not consider his case properly and his problems in Pakistan.
17. 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.’
18. The Board had considered the Board’s First Decision, which deals with the main facts of the applicant’s claim. It had also considered the additional facts raised by the applicant. It had come to its conclusion to dismiss the applicant’s appeal against the Director’s Second Decision.
19. As to the grounds set out in paragraph 14, supra, the allegations as claimed by the applicant do not involve the issue of state acquiescence; he did not ask for time from the Board for the preparation of his appeal; there is no evidence or allegation that he was tortured by police; the Board had considered his submission of incompetency or corruption of police officer of Pakistan, but the Board had also taken into consideration the COI that state protection was available and the government of Pakistan is fine-tuning on the laws or policy, see paragraph 32 of the Board’s Decision. The other grounds are only the applicant’s personal opinions or comments without any evidence in support. All of his grounds therefore fail.
20. The applicant is unable to raise any valid ground to challenge the Board’s Second Decision.
21. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
22. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.”
The Appeal
11. On 25 August 2023, the Applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:
“… the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”
12. The Applicant lodged his skeleton submission on 25 October 2023. In those submissions, the Applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim. The Applicant further contended that the Board failed to scrutinise the Director’s decision and that the Board ought to have considered matters such as the conditions of the Applicant’s country of origin. He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly. It is noted that these are all general propositions and the Applicant has failed to show specifically how they are relevant to his case. Importantly, none of his submissions have identified any error in the Leave Decision.
13. We heard the appeal on 5 December 2023. An interpreter was present to provide language assistance. At the hearing, the Applicant said he wanted to emphasise only 1 point ie his life was at risk and he could not go back to his country.
Discussion
14. The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].
15. 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. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.
16. At the outset, all of the Applicant’s allegations are vague, bare contentions. Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written skeleton submission did the Applicant identify with particulars how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, his submissions are plainly not proper grounds of appeal. On this basis alone, his appeal must fail.
17. Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib[2020] HKCA 408 at [28]. More importantly, it is well‑established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Md Shohel Sheak[2018] HKCA 714 at [13] and Re Limbu Birkhaman[2019] HKCA 50 at [11]. The Deputy Judge correctly did not find any valid ground to challenge the Board’s Further Decision. There is no basis for us to interfere with the Leave Decision.
18. For the above reasons, the Applicant’s appeal has no merits and is hereby dismissed.
(Thomas Au)
Justice of Appeal | (Peter Ng)
Judge of the Court of
First Instance |
The Applicant acting in person
[1] 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.
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] 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.
[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 and its 1967 Protocol.