CACV 456/2024, [2025] HKCA 87
On Appeal From [2024] HKCFI 2815
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 456 OF 2024
(ON APPEAL FROM HCAL NO 2012 OF 2019)
________________________
BETWEEN |
| | TAJAMMAL HUSSAIN | 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 Lisa Wong J in Court |
| Date of Hearing: | 22 January 2025 |
| Date of Judgment: | 13 February 2025 |
_______________
J U D G M E N T
_______________
Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 29 October 2024 (“the Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 14 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 January 2017.
BACKGROUND
2. The Applicant is a national of Pakistan. He arrived in Hong Kong as a visitor on 17 January 2004, and had overstayed since 28 January 2004. On 16 March 2005, he was arrested by the police for using a Hong Kong identity card relating to another person. He was subsequently convicted and sentenced to nine months’ imprisonment for this offence. Upon his discharge from prison on 14 September 2005, he lodged a torture claim on 28 September 2005. His torture claim was refused on 8 May 2012, and his petition against the refusal was rejected on 27 July 2012.
3. On 14 February 2013, he lodged a non-refoulement claim, which was assessed by the Director on all applicable grounds other than risk of torture[1]. The basis of his claim was that, if refouled, he would be harmed or killed by the leaders and members of Sunni Muslim in his village as his brother was involved in a murder case of a Sunni Muslim man over a land dispute. Details of the Applicant’s claim have been summarised by the Judge at §§4-7 of his decision dated 29 October 2024.
4. By a Notice of Decision dated 17 January 2017 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds other than risk of torture, namely, BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
5. The Applicant appealed the Director’s Decision to the Board. On 14 June 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 §§11-12 of his decision, as follows:
“[11] The Board considered that the [Applicant] had exaggerated the claimed risks he would face upon return to Pakistan. In particular, he did not convert to a Shia and was still a Sunni. It was also implausible that his other siblings and daughter could remain unharmed throughout all these years. Furthermore, the available medical evidence showed that the [Applicant’s] health problem was not the result of his injuries sustained from the assault in 2002 [37]-[40].
[12] Based on such findings, the Board concluded that the [Applicant’s] case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [41]-[49]. In any event, state protection and internal relocation would also be available according to the country of origin information [50]-[57].”
THE JUDGE’S DECISION
6. On 16 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was set out in the Form 86. The Applicant’s grounds of intended challenge, as raised in his supporting affirmation, were summarised by the Judge at §15 of his decision, as follows:
“(1) Procedural impropriety: failing to take into consideration right to life; failing to make sufficient inquiry into the relevant country of origin information (‘COI’) on the sectarian killings between Sunni and Shia Muslim; there was no evidential basis for the assessment of BOR 3 risk; and failing to give sufficient reasons for assessment of BOR 3 risk[.]
(2) Error/Misdirection in law: failing to take into account the psychological strain and threats to [him] personally.”
7. On 29 October 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[16] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…
[17] 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 accept his evidence…
…
[19] The Board, for the reasons given above, found that the [Applicant’s] claimed risks were unfounded. The grounds that the [Applicant] has raised under paragraph 15 are only his bare assertions without any evidence in support. They are not valid reasons to challenge the Board’s Decision.
[20] There is no reason that the Court should interfere with the Board’s finding of the facts.
[21] The [Applicant] therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”
THIS APPEAL
8. In a document titled “Grounds for Appeal” annexed to his Notice of Appeal filed on 31 October 2024, the Applicant raised the following grounds of appeal:
(1) The Judge made errors of law and fact in giving a wrong judgment which should be set aside[5].
(2) The Judge failed to take into account relevant materials, and took into account irrelevant materials[6].
(3) There were unfairness and injustice arising from the Judge’s failure to apply his judicial mind independently to the facts and circumstances of his case and give cogent reasons in his decision[7].
(4) The Adjudicator of the Board failed to consider the element of mental suffering when determining the Applicant’s claim[8].
(5) The Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director and the Adjudicator[9].
(6) The decision-makers failed to consider the hardship that he would face if he was to return to his home country, and he should be permitted to stay in Hong Kong until his problem in Pakistan had been resolved[10].
9. In his 4-page written submissions lodged on 18 December 2024, the Applicant made generic submissions on some general principles of law, including the propositions that high standards of fairness are required in the determination of a torture claim and that a decision-maker is under a duty to act fairly, but he failed to explain how they were applicable to his case. He also submitted that the Board erred in its formulaic approach by simply trying to see whether it could find fault with the Director’s Decision, without scrutinising the Director’s Decision or considering the conditions of the Applicant’s country of origin.
10. At the hearing of the present appeal, the Applicant stated that he had been here for 21 years, and had married a Chinese woman for the past 20 years. He did not have any criminal record (save the one mentioned in paragraph 2 above), and assured the Court that he would not commit any criminal offence in Hong Kong. He said that he had applied for a visa 4 times before, but those applications had all been rejected. He also said that he had lost all his family in Pakistan.
DISCUSSION
11. 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 was a fresh application for judicial review (see Nupur Mst, at §14(6)).
12. Further, the assessment of evidence, COI, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
13. The Applicant’s complaints against the decisions of the Judge, the Board or the Director are all general allegations without particulars, and cannot constitute valid grounds of appeal against the Judge’s decision. The Board did take into account the relevant COI and the circumstances of the Applicant’s case in coming to the findings that state protection and internal relocation were both viable options to the Applicant upon refoulement (see §§50-57 of the Board’s Decision). The complaint that the Board did not consider the conditions of the Applicant’s country of origin is clearly without foundation.
14. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
15. The Applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal | (Lisa Wong)
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 his 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 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.
[5] Notice of Appeal, §§ i-iii and viii.
[6] Notice of Appeal, §§iv, vi, vii and ix.
[7] Notice of Appeal, §§v, x-xii, xvi and xvii.
[8] Notice of Appeal, §§xiii and xv.
[9] Notice of Appeal, §§xviii and xix.
[10] Notice of Appeal, §§ xiv and xx-xxii.