CACV 306/2023, [2024] HKCA 135
On appeal from [2023] HKCFI 2417
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 306 OF 2023
(ON APPEAL FROM HCAL NO 765 OF 2021)
________________________
BETWEEN |
| | Raza Ali | Applicant |
| | and | |
| | Torture Claims Appeal Board | Putative |
| | | Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | Interested Party |
________________________
| Before: | Hon Kwan VP and Lisa Wong J in Court |
| Date of Hearing: | 30 January 2024 |
| Date of Judgment: | 8 February 2024 |
________________________
J U D G M E N T
________________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 26 September 2023, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a notice of appeal against the said decision on 5 October 2023.
2. The applicant is a national of Pakistan. He entered Hong Kong illegally on 1 December 2015 and surrendered to the Immigration Department on 16 December 2015. He lodged a non-refoulement claim on 20 January 2016 on the basis that he will be harmed or killed by the village head of his home village because of a land dispute if he returns to Pakistan.
The decision of the Director
3. By a Notice of Decision dated 28 June 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].
4. As the applicant had never received any bodily harm or any injury inflicted by the village head in all the previous incidents, the Director considered that the village head did not have real intention to cause serious harm to the applicant or to kill him. The Director also held that the applicant would not have stayed peacefully in Lahore and Faisalabad if the village head was as powerful and influential as alleged and there is no evidence to suggest that the police had acted under the instruction or influence of the village head. The Director further assessed that the availability of state protection and internal relocation alternatives in Pakistan further lowers or negates the perceived risk.
The decision of the Board
5. The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 13 November 2020. The Board considered that the applicant was not a witness of truth and that he had at the very least exaggerated his claims or had in some instances fabricated them. The Board did not accept there had been a land dispute as described by the applicant because of the significant inconsistencies in the information provided. It was also found that his allegation of being wanted by the police for kidnapping is implausible and far-fetched. The Board further held there is no evidence of state involvement in this case. It concluded that there is no real risk the applicant would face any of the proscribed forms of harm should he return to Pakistan and accordingly dismissed the appeal on 19 March 2021.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 20 May 2021 to seek leave to apply for judicial review against the Board’s decision.
The judge’s decision
7. The applicant attended a hearing before DHCJ Bruno Chan on 5 September 2023. He did not put forward any proper ground for his application. The judge found there is no reasonably arguable basis for the applicant’s intended challenge and no error of law, irrationality or procedural unfairness in the process before the Board or in the Board’s decision. Thus, the judge dismissed the leave application on 26 September 2023.
Grounds of appeal
8. The applicant stated the following grounds in his skeleton submissions attached to the notice of appeal filed on 5 October 2023:
(1) The Board has extracted some country of origin information from the internet but did not know the working of the security authorities in Pakistan. There is no justice for poor people and members of the public and the law is “fictitious”.
(2) The Pakistani legal authorities are “puppets” of the rich and the gangsters. From the biggest security agency to the smallest, everyone is a bribe-taker. If the applicant had received protection there, he would never have sought refuge in any country outside his own.
(3) The Hong Kong government knows very well how flawed the Pakistani government is with no safeguards at all.
(4) The Board checked his non-refoulement claim briefly and not with the intention to shelter him in Hong Kong.
(5) The applicant hopes that the court can re-check his claim under the light of human right laws to protect his life from his enemy so that he can get justice.
9. At the hearing of the appeal, the applicant repeated his contention that he knows of no safe place in his home country that he can live. If he had known of such a place, he would go to live there.
Legal principles
10. 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.
11. 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 the 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.
12. 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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.
Analysis and disposition
13. The applicant’s grounds in this appeal are just bare assertions without evidence in support. The applicant failed to provide any evidence to refute the Board’s finding that his claims are untruthful. He also failed to show that the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
14. For the above reasons, there is no merit in any of his grounds of appeal. We therefore dismiss the appeal.
(Susan Kwan)
Vice President | (Lisa Wong)
Judge of the Court
of First Instance |
The Applicant (Appellant), acting in person
[1] [2023] HKCFI 2417
[2] 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.
[3] 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).
[4] 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).
[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 and its 1967 Protocol.