HUSSAIN QAMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 149 /2024, [2025] HKCA 563

On appeal from [2024] HKCFI 968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 149 OF 2024

(ON APPEAL FROM HCAL NO 2450 OF 2020)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 3 April 2024, Deputy High Court Judge To refused to grant leave for the applicant to apply for judicial review against 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 this decision on 17 April 2024.

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 6 November 2007 and was arrested by the police on 7 November 2007.  He lodged his torture claim on 20 November 2007 which was rejected on 7 September 2012.  He then lodged his non-refoulement claim on 16 October 2014.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle over a land dispute, and arrested or killed by the Pakistani police.

The decision of the Director

3.  As the applicant’s torture claim has been rejected previously, the Director of Immigration (“the Director”) assessed the applicant’s non-refoulement claim on all applicable grounds other than torture risk^[2] under the unified screening mechanism, including BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5].  His claim was rejected by the Director by a Notice of Decision dated 14 January 2019. 

4.  The Director considered the applicant’s story not plausible.  In respect of the alleged past ill-treatment from the applicant’s uncle, the Director did not accept that the harm he suffered had attained the requisite minimum level of severity.  The Director also assessed that state protection and internal relocation options are available to the applicant in Pakistan, which further lower or negate any perceived risk.  

The decision of the Board

5.  The applicant attended the hearing of the appeal against the Director’s decision before the Board on 10 July 2020.  The Board did not accept the applicant’s evidence as it was vague, unclear and illogical.  The Board did not accept that the applicant was threatened to be harmed or killed by his uncle or that he was assaulted by the police.  It further found that state protection would be available to the applicant and it would not be unduly harsh for him to relocate to other areas in Pakistan. Thus, the Board held that the applicant’s appeal fails on all applicable grounds and dismissed the appeal on 4 December 2020.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 16 December 2020 to seek leave to apply for judicial review against the decision of the Board.  He only stated in his supporting affirmation that he did not agree with the decision of the Board, without putting forward any specific grounds for his intended challenge.

The judge’s decision

7.  The applicant was absent from the hearing scheduled before DHCJ To on 29 February 2024.  Therefore, the judge dealt with the application on paper.  The judge found no error of law or procedural unfairness at any stage of the non-refoulement proceedings and that the Board’s decision is without fault.  The judge concluded there is no realistic prospect of success in the proposed judicial review and dismissed the leave application on 3 April 2024.

Grounds of appeal

8.  In his Notice of Appeal, the applicant stated that he did not get justice, the court did not consider his judicial review and the judge’s decision is full of mistakes.

9.  He attached an arrest warrant to his written submissions but did not put forward further submissions concerning his grounds of appeal.

10.  The applicant has submitted a written consent to dispose of the appeal on paper without an oral hearing.

Legal principles

11.  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.

12.  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 scrutinising 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.

13.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

Analysis and disposition

14.  On 6 June 2024, the applicant filed a summons which states that “I thanks to the court to extend time for me to submit my documents”.  As the Registrar of Civil Appeals had already directed the applicant to file an affirmation exhibiting the copy sealed order on 28 May 2024, and the applicant had complied with the said directions, there shall be no order in respect of this summons. 

15.  As for the documents attached to his written submissions, the applicant has not applied for leave to adduce new evidence in this appeal.  Therefore, he is not entitled to rely on any new evidence.  In any event, even if the court were to consider the new evidence on a de bene esse basis, those documents would not assist the applicant in refuting the Board’s findings against him.

16.  The applicant failed to show any errors of law or procedural unfairness or irrationality in the decision of the Board.  The judge has set out in detail the reasons for rejecting the leave application in his decision.  The applicant failed to identify any errors of law, failure to take account of relevant matters already placed before the court or any particular mistake in the judge’s decision. 

17.  For the above reasons, the appeal is without merit.  We therefore dismiss the appeal.

[1]  [2024] HKCFI 968

[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 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.