RE HAYAT KHAWAR

CACV 142/2023, [2025] HKCA 553

On appeal from [2023] HKCFI 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 142 OF 2023

(ON APPEAL FROM HCAL 15/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 5 May 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑Refoulement Claims Petition Office (“the Board”) dated 31 December 2018[1] (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 February 2018 (“the Director’s Decision”) rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 16 January 2016 and surrendered to the Immigration Department on the same day.  Subsequently, he lodged a non-refoulement claim made by way of a written representation dated 22 June 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by his uncle Umer Hayat by reason of a land dispute. The details of the applicant’s claim have been summarised by the Judge at [4] to [9] of the Judge’s decision (“the CALL-1 Form”)[2].

4.  By a Notice of Decision dated 27 February 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[3], the BOR 3 risk^[4], the persecution risk^[5] and the torture risk^[6].

5.  The applicant appealed to the Board.  After a hearing on 12 November 2018, the Board dismissed the appeal on 31 December 2018 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that the inconsistencies and contradictions in the applicant’s evidence rendered his account of events, on which his alleged threat of harm was said to be based, unreliable and incredible.

The Judge’s decision

6.  The applicant filed a Form 86 on 3 January 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.

7.  In the applicant’s supporting affirmation, he stated that the problems in his home country were still unresolved, and that if he were refouled his life would be in danger.

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [16] of the CALL-1 Form:

“14. The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he reiterated that he had problems in his home country and his life is still in danger in anywhere in Pakistan.

15. The essence of the Applicant’s ground for review is that he disagreed with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness and irrationality in the Decision.

Conclusion

16. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board saw problems with the Applicants’ claim and scheduled a hearing to give him an opportunity to address the Board’s concerns.  The Board identified its concerns to the Applicant.  Despite repeated invitations, the Applicant insisted not to affirm and testify to address the Board’s concerns.  He insisted that all the materials are in the hearing bundle and requested the Board to make a decision on the basis of the materials in the hearing bundle.  The objective circumstances made it reasonably clear that the Applicant was aware of what he had to show and had already produced or mentioned all that he wanted to show. Hence, the Board acceded to his request and assessed his claim on the basis of the materials available.  It found the Applicant not credible and that he had failed to establish the factual basis in support of his claim for non-refoulement protection.  On the basis of credible country of origin information, the Board was also satisfied that the Applicant could access internal relocation to avoid the harm, if there is any upon his return to Pakistan.  It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, the application for leave to apply for judicial review is refused.”

Grounds for appeal

9.  In the Notice of Appeal dated 10 May 2023, the applicant claimed that he was unaware of the “reasons” for the Judge’s decision.

10.  The applicant lodged written submissions on 24 May 2023, which contained no more than repetitions of the alleged dangers he may face should he be refouled, as well as his dissatisfaction, without elaboration on the same, against the Judge’s decision.

11.  On 28 August 2024, the applicant filed an affirmation with the court (“the Withdrawal Application”), applying to “close [his] case no CACV 142/2023”.

12.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

13.  There is no reason why the present appeal should not be dismissed on the basis of the Withdrawal Application alone.  However, we have nonetheless proceeded to consider the merits of the appeal.

14.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

15.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

16.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.