RE KHAN RAI USMAN FAROOQ

CACV 439/2021

[2022] HKCA 573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 439 OF 2021

(ON APPEAL FROM HCAL NO. 2801 OF 2018)

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J U D G M E N T

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

I.  The appeal

1.  This is the appeal against the decision of Deputy High Court Judge K.W. Lung (the ‘Judge’)  dated 17 August 2021, where he refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 30 November 2018.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.     The applicant is a citizen of Pakistan.  He came to Hong Kong illegally by boat, and he surrendered to the Immigration Department on 3 March 2016.  He raised a non-refoulement claim on 26 September 2016 on the basis that if refouled, he would be harmed or killed by the supporters of the Pakistan Muslim League (Nawaz)  (‘PML(N)’), the ruling party, as he was a supporter of its rival party, Pakistan Tahrek-e-Insaf (‘PTI’).

4.     The applicant’s claim has been summarised by the Judge at [5] of the CALL-1 Form dated 17 August 2021 (published as [2021] HKCFI 2347)  (the ‘CALL-1 Form’).

III.  The Director’s Decision

5.  The Director of Immigration (the ‘Director’)  decided against the applicant’s claim on 27 July 2017.  The decision covered all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’)  being violated including right to life under Article 2 (‘BOR 2 Risk’)  and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (‘BOR 3 Risk’), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk’).

6.  The Director found that the applicant’s claim was not substantiated, and the level of risk of him being harmed or killed if returned to Pakistan was low.  The Director did not accept the applicant’s allegation that state protection was not available to him.  The Director further found that internal relocation was an option open to him.

IV.  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was held on 3 April 2018.  On 30 November 2018, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

8.  The Board found that the applicant’s case was inconsistent and rejected the applicant’s evidence that he was attacked by PML(N)’s supporters or that the police was biased or targeted him because of his political affiliations.  Also, the applicant’s claim that he was in danger of being prosecuted for a false murder charge was not substantiated.  Moreover, state protection was available to him, and internal relocation was an option open to him.  He had failed to prove by evidence any of the risks he claimed.

V.  The Judge’s Decision

9.  On 7 December 2018, the applicant filed a Form 86 with a supporting affirmation.  In his affirmation dated 7 December 2018, he set out 14 grounds seeking to impugn the decisions of the Director and of the Board and attached to it a 46-page document dated 6 December 2018 setting out his grounds.

10.  The Judge refused to grant leave for him to apply for his intended judicial review for the following reasons set out at [14]-[17] of the CALL-1 Form that :

‘ 14. His grounds are massive and discursive, many of them being irrelevant to his case. They are only his opinions without any evidence or specifics in support of them. The Board had clearly given its reasons in support of its findings. Those grounds are rejected.

15.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.’

VI.  The present appeal

11.  The applicant filed a notice of appeal on 14 September 2021.  In his notice of appeal, the applicant stated that :

‘ The High Court refused my leave to apply for judicial review. There is no law to refuse it. Please quash it.’

12.  This ground of appeal is a bare allegation without specifics or elaboration.

13.  In his written submissions lodged on 28 September 2021, apart from repeating his alleged political problem in Pakistan and reiterating that it was not safe for him to return to Pakistan, he asserted that there were many errors in the decisions of the Director and of the Board, and that the Judge’s decision was incorrect.  No specifics or particulars were provided.

VII.  Our view

14.  We will repeat the approach of this Court in dealing with cases of this nature :

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 an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and Country of Origin 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 their decisions.

2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  In our view, there is no merit in the applicant’s appeal.

16.  The Judge had provided proper reasons for refusing the application.  The applicant did not in his notice of appeal and written submissions identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.

17.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.