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

CACV 389/2021

[2021] HKCA 1924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 389 OF 2021

(ON APPEAL FROM HCAL NO 2770 OF 2018)

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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.  This is an appeal against the decision of Deputy High Court Judge K W Lung on 5 August 2021[1] (“the Judge’s Decision”) refusing to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 28 November 2018 concerning his non‑refoulement protection claim (“the Board’s Decision”).

2.  The applicant is a Pakistani national of 52 years old.  He sought to enter Hong Kong on 11 November 2015 but was refused permission to land.  He filed a non-refoulement claim on the same date.  His claim was made on the basis that, upon refoulement, he would be harmed or killed by Raziq because he was unable to repay the debt owed to Raziq and he also refused to work for Raziq for free.   

The Director’s decisions

3.  By a Notice of Decision dated 28 January 2016 (“the Director’s First Decision”) and a Notice of Further Decision dated 20 October 2017 (“the Director’s Second Decision”), the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds, namely, torture risk[2], BOR 3 risk[3], persecution risk[4] and BOR 2 risk[5].

The Board’s Decision

4.  The hearing of the appeal against the Director’s decisions was conducted before the Board on 9 March 2018.  The applicant confirmed the documents contained in the hearing bundle placed before the Board to be true and accurate.  He informed the Board that he did not wish to give oral evidence.

5.  While the Board did not dismiss the applicant’s version of events for matters that happened prior to his departure from Pakistan, it cast doubt on the applicant’s assertion that Raziq had intended to kill him.  The Board found that Raziq only intended to retrieve the balance of the money owed by the applicant and it reasoned if Raziq had intended to kill the applicant he could have done so on many occasions.  Further, the applicant’s assertions of the risk of being harmed or killed by Raziq were pure speculations and hearsay.  In any event, after considering the relevant country of origin information (“COI”), the Board found that state protection and internal relocation were available to the applicant.  The Board therefore rejected his appeal.

The Judge’s Decision

6.  On 5 December 2018, the applicant filed a Form 86 accompanied by a supporting affirmation for leave to apply for judicial review against the Board’s Decision.  He did not request an oral hearing.  He advanced fourteen grounds of review in his supporting affirmation, which could be summarized as follows:

(1)  The Board had no reasonable basis to reject his credibility;

(2)  The Board failed to consider extended state acquiescence;

(3)  The Board failed to consider the COI in assessing his risk;

(4)  The Board violated the principle of irrationality as the decision maker was a person different from the interviewing officer;

(5)  The Board failed to investigate the COI of Pakistan;

(6)  The Board failed to consider a consistent system of human rights violation;

(7)  The Board placed weight on irrelevant and inaccurate matters;

(8)  The Board failed to call psychological and/or psychiatric reports;

(9)  The Board applied an incorrect standard of proof;

(10)  There was no proper basis for internal relocation.

7.  In the attachment to his supporting affirmation, the applicant cited lengthy paragraphs from legislation and cases on general legal propositions in the handling of non-refoulement claims.  He mentioned these additional grounds of review: he lacked language and legal assistance; in relation to the Director’s Second Decision, he did not receive the Director’s letter to submit additional evidence, he was not given a screening interview for his claim in respect of BOR 2 risk, he was not aware of the Director’s Second Decision when he appeared before the Board; and he did not have a fair hearing. 

8.  The judge considered the applicant’s grounds of review as summarized at §12 of the Judge’s Decision.  He mentioned the applicable legal principles in considering the merits of the applicant’s leave application.  He found that the applicant’s grounds were sweeping and irrelevant to his case; there was no evidence of state involvement and the issue of human rights did not arise in his case.  The judge also found that the applicant did not raise the issue of psychiatric problems before the Director or the Board and that the remaining grounds of review were merely the applicant’s comments and opinion without any evidential support.  As there was no error of law or procedural unfairness in the Board’s Decision, the judge refused to grant leave to apply for judicial review.

Grounds of appeal

9.  The applicant filed a Notice of Appeal against the Judge’s Decision on 13 August 2021.  In his Notice of Appeal, he simply stated that his grounds of appeal would be provided at a later date.

10.  In his written submissions of 12 November 2021, the applicant again cited some general propositions and advanced the following grounds:

(1)  The Board acted in a procedurally unfair manner in assessing the applicant’s credibility;

(2)  The Board acted in a Wednesbury unreasonable manner;

11.  The applicant repeated his claim in his submissions and asked the court to give him time to solve his problem in his home country. 

Legal Principles

12.  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.

13.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for repeating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.

14.  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

15.  The two grounds of appeal put forward by the applicant are merely assertions of general principles of law without identifying any errors in the Judge’s Decision.  They are also regurgitations of the arguments advanced but were rejected by the judge. In any event, we are satisfied that the judge had explained why the applicant failed in establishing any grounds of review in respect of the Board’s Decision.  We agree with the judge that the Board had adhered to a high standard of fairness in assessing the applicant’s claim.  None of the applicant’s grounds of review under the principles of irrationality, procedural unfairness or Wednesbury unreasonableness were made out. 

16.  Further, his complaints with regard to the Director’s Second Decision were also unmeritorious and contradicted by the objective facts.  As recorded in the Director’s Second Decision, the applicant had responded to the Director’s letters and submitted additional facts for the Director’s assessment of his claim on BOR 2 risk.  As to his complaint of lack of language and legal assistance, it has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process[6] and that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he desires[7].

17.  For all the above reasons, we dismiss the appeal.