RE KASHIF MUHAMMAD

CACV 188/2020

[2021] HKCA 47

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 188 OF 2020

(ON APPEAL FROM HCAL NO 1400 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 3 June 2020[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Pakistan.  He is 31 years old.  He came to Hong Kong illegally on 20 February 2016 and was arrested by the police on the same day. He lodged a non-refoulement claim on 22 February 2016 on the basis that he would be harmed or killed by two groups of men if he is repatriated to Pakistan as he had witnessed a murder resulting from a fight between them.

The Director’s decision

3.  By a Notice of Decision dated 22 August 2017, 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.  The Director found that there is no reasonable likelihood that the risk of harm from the two groups of men is real and foreseeable.  The Director also considered that there is no indication that any particular political or official powers in Pakistan had or would have adverse interest in the applicant.  His problem with the two groups of men was localized in his residence and working location.  The Director assessed that the availability of state protection and internal relocation option further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.   An oral hearing was held on 6 June 2018.  The Board did not accept that the applicant had witnessed a fight in which a person was fatally shot and did not accept that he was ever threatened or harmed by anyone linked to the asserted events because of the significant inconsistencies in his evidence.  The Board was not satisfied that the applicant faces a real chance of harm of any kind in Pakistan for any reason and rejected the appeal on 9 July 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 16 July 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7.  His grounds for his intended judicial review may be summarized as follows:

(1)  The Director failed to appreciate the presence of state acquiescence;

(2)  The Director failed to maintain high standard of fairness;

(3)  The Director failed to take into account the failure of the state to provide reasonable protection to citizens but only gave weight to evidence according to his pre-conceived conclusion which was unfair to him;

(4)  The Board had not made sufficient enquiries into the matter and failed to give sufficient chance for him to adduce relevant evidence.

The judge’s decision

8.  The applicant appeared at the hearing on 20 December 2018.  He confirmed before the judge that he did not have any complaint against the Director in relation to the process of interview and did not have any complaint against the Board.  The judge held that the applicant has not set out any exceptional circumstances which entitled him to apply for judicial review of the Director’s decision.  The judge considered that the applicant failed to identify the evidence he intended to adduce to the Board and the effect of having no such evidence.  The judge also held that the rest of the applicant’s grounds are not supported by evidence. The judge found that the applicant was unable to show he had any reasonable chance in his intended judicial review and dismissed the leave application on 3 June 2020.

Grounds of Appeal

9.  The applicant stated his grounds of appeal in the Notice of Appeal as follows:

(1)  The applicant will face hardship if he is to return back to his home country;

(2)  the 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 the Board making groundless speculations.

10.  In his skeleton submissions, the applicant stressed that high standards of fairness are required in the determination of a torture claim.  He also submitted that the court should carry out rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met and he should be given every reasonable opportunity to establish the claim.

11.  At the hearing of the appeal, the applicant had nothing to say.

Discussion

12.  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:

(1)  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 a heightened standard in scrutinizing the decision of the Board having regard 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, risk of harm, state protection and viability of internal relocation are matters 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, procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

13.  The applicant’s grounds of appeal are bare assertions without particulars, elaboration or evidence in support.  They do not constitute viable ground to reverse the judge’s decision.  The applicant failed to provide any explanation for the significant inconsistencies identified by the Board or provide evidence to rebut the Board’s findings.  He also failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision

14.  There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  Therefore, the appeal should be dismissed.

[1] [2020] HKCFI 1014

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of life under article 2 of the Hong Kong Bill of Rights.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[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.