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

CACV 199/2024, [2025] HKCA 169

On Appeal From [2024] HKCFI 1239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 199 OF 2024

(ON APPEAL FROM HCAL NO 665 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 9 May 2024[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 11 December 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 11 July 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The Applicant is a Pakistani national born in 1988. He entered Hong Kong illegally on 12 February 2007 and was arrested on 12 April 2007. He then made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 5 May 2007 (the “Torture Claim”). His Torture Claim was dismissed by the Director on 27 July 2012 and his application for late filing of the Notice of Appeal/Petition to the Board was also refused on 8 January 2013. Upon the implementation of the Unified Screening Mechanism (“USM”), the Applicant made a non-refoulement claim on all applicable grounds other than Torture risk[2] on 22 February 2013. The claim was made on the basis that, if refouled, he would be harmed or even killed by some moneylenders because of his inability to repay his father’s debts owed to them. The factual background of the applicant’s claim was set out at [17] to [25] of the Board’s decision.

3.  The applicant’s non-refoulement claim was assessed by the Director with reference to all relevant risks other than Torture risk, namely BOR 3 risk,[3] persecution risk[4] and BOR 2 risk.[5] By notice of decision dated 11 July 2018, the Director rejected the applicant’s claim.

4.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 6 August 2019, during which the applicant gave evidence and answered questions from the Board. In its decision dated 11 December 2019, the Board dismissed the appeal and affirmed the decision of the Director. The Board noted that the applicant had little knowledge about his father’s business and the loan from the moneylenders. Given the multiple significant anomalies in the applicant’s evidence, the Board considered him not credible and rejected his claim in its entirety.

The Judge’s decision

5.  Over a month beyond the 3-month time limit for bringing judicial review proceedings as prescribed by Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A), on 16 April 2020, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision. He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation. In the latter, he simply annexed the Director’s and the Board’s decisions. Subsequently, the applicant submitted a letter to the Court, claiming that his enemy had killed his father in 2022 and had t through his mother threaten [2025] HKCA 169 ed to kill him.

6.  The hearing was originally scheduled on 28 March 2024, but was re-fixed to 12 April 2024 upon the request by the applicant. Although he applied for further adjournment to await the outcome of his legal aid application, the Judge refused an adjournment as he considered that the applicant was adopting delaying tactics by making a late legal aid application and that in any event, he would not be prejudiced without legal representation.

7.  On 9 May 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [20] to [24] of the Form CALL-1 as follows:

“ 20. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration [5].

21. The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, the only complaint he raised was that the Board disregarded his dangerous situation. He had been invited by the Court via its letter dated 27 March 2024 to advise the Court of his first language and to file submissions. He responded but did not file any submissions. The essence of the Applicant’s complaint 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.

22. In the course of explaining the legal principles in the preceding section to him and exploring his grounds of application, he repeated his need for legal representation and reiterated his fears and risk of harm. He asserted that a few months back the moneylenders attacked his home, harassed his mother and killed his father and that the police did nothing to protect him and his family because PML-N is in power. These are allegations of new facts which occurred after the Decision had been made. These allegations could have no bearing on the Board’s Decision upon its finding that the factual basis of his claim, ie the threats and risk of harm from the moneylender, is not credible.

23. 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 unreasonableness or irrationality in the Decision.

24. 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 found the Applicant’s evidence incredible and his case concocted. He had therefore failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant 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. Leave to file the leave application out of time is therefore refused.”

Appeal to this Court

8.  On 20 May 2024, the applicant filed his Notice of Appeal against the Judge’s decision. He recited general legal principles related to high standards of fairness and Wednesbury unreasonableness as his grounds of appeal. He also asserted that his detention by the Immigration Department was unlawful and claimed that his health condition was deteriorating. Finally, he reiterated his claimed fear of being harmed by the moneylenders and denied the availability of state protection.

9.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

10.  The applicant was late in lodging his written submission. He claimed that he was detained in Tai Tam Gap Correctional Institution and did not receive the Court’s directions on time. In his submission dated 28 June 2024, he asserted that his uncle was also killed by the moneylenders and mentioned that he had a 10-year-old daughter, who is a permanent resident in Hong Kong. Subsequently, on 12 September 2024, the applicant submitted a First Information Report, claiming that he had family members killed in a gunshot incident.

Discussion

11.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

12.  In the present case, given the multiple significant anomalies in the applicant’s evidence, the Board found him not credible and rejected his claim in its entirety. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.

13.  The applicant has failed to show any reasonably arguable ground for saying that the Board’s decision should be impugned due to public law errors. Equally, he has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.

14.  The applicant’s appeal is accordingly dismissed.