RE AHMED ISHTIAQ

CACV 66/2021

[2021] HKCA 961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 66 OF 2021

(ON APPEAL FROM HCAL NO. 35 of 2019)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Patrick Li (“the Judge”)  given on 9 February 2021 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”)  dated 24 December 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”)  dated 22 November 2017 rejecting his non-refoulement claim.    

2.  The applicant has consented to this appeal being determined on the papers without an oral hearing.

3.  The applicant is a Pakistani national aged 45.  He entered into Hong Kong illegally and was arrested by the police on 27 December 2015. He raised a non-refoulement claim on 30 December 2015. 

4.  The applicant’s claim is based on his fear of being harmed or killed by his uncle and cousins due to a dispute over a piece of family land.  The applicant’s case was set out in detail in the Director’s decision and also the Board’s decision, and summarised by the Judge in [1] to [13] of the Form CALL-1 dated 9 February 2021 ([2021] HKCFI 268).  We will not repeat it.

5.  By a Notice of Decision dated 22 November 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4] grounds.   

6.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 16 October 2018, during which the applicant gave evidence and answered questions put by the Board.  By its decision dated 24 December 2018, the Board dismissed the appeal.  In short, the Board considered there were serious inconsistencies and contradictions in the applicant’s evidence that undermined the reliability and credibility of his case.  The Board concluded on the evidence that the applicant had failed to establish any of the applicable grounds.  The Board additionally pointed out internal relocation options are reasonably available, which would reduce or negate any risk of harm that the applicant may face if he were to return to his country.          

7.  The applicant filed a Form 86 together with a supporting affirmation on 4 January 2019 to seek leave to apply for judicial review against the decision of the Board.  The grounds attached to the Form 86 only gave an account of his claim, but did not set out any specific or proper ground for seeking relief or point to any error in the Board’s decision.  In his affirmation, he stated that the Board’s decision was unreasonable and that his life was in danger.     

8.  At the applicant’s request, the Judge listed the application for an oral hearing on 8 December 2020.  However, the applicant did not appear.  By his decision of 9 February 2021, the Judge refused to give leave to apply for judicial review.  The Judge found no error of law or procedural unfairness, and concluded that the intended judicial review was unarguable and had no reasonable prospect of success.

9.  The applicant filed a notice of appeal on 18 February 2021 to appeal the Judge’s decision.  Other than stating that he was not satisfied with the decision, the applicant did not set out any ground of appeal. 

10.  The applicant has lodged a written submission in which he gave an account of his claim. He also stated that he came to Hong Kong for the safety of his life, and he did not agree with the Director’s and the Board’s decisions, but the Judge refused to give him leave to apply for judicial review.  He asked the Court of Appeal to give him leave and save his life.

11.  The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].         

12.  It is also established law that assessment of risk of harm and country of origin information is a matter for the Director and the Board, who are the primary decision makers.  The Court will not interfere with their decisions unless there are errors of law, irrationality or procedural unfairness. 

13.  Other than stating that he was not satisfied with the decisions of the Director, the Board and the Judge, the applicant has not put forward any substantive or viable ground in support of his application for judicial review and his appeal.  Notwithstanding this, we have considered the Board’s decision.  We do not discern any legal errors, irrationalities or procedural irregularities.  There is no proper basis for the Court to disturb the Board’s decision to dismiss the applicant’s appeal against the Director’s decision.  We agree with the Judge’s conclusion that the intended judicial review is unarguable and has no reasonable prospect of success and his decision to refuse leave to apply for judicial review.

14.  For the above reasons, the appeal is unarguable. Accordingly, we dismiss the appeal.