RE NADEEM IRFAN

CACV 592/2021

[2022] HKCA 839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 592 OF 2021

(ON APPEAL FROM HCAL NO. 507 of 2019)

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JUDGMENT

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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 Lung (“the Judge”) given on 20 December 2021[1] refusing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 10 April 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 1 February 2019 dismissing his appeal against the Director’s decision.

2.  The applicant is a national of Pakistan aged 51. He entered Hong Kong on 21 December 2013 and was given permission to remain as a visitor.  His limit of stay was subsequently extended to 7 January 2014.  He overstayed and was arrested by the police on 14 June 2016.  He raised a non-refoulement claim on 4 July 2016 based on fear of being harmed or killed by members of the Pakistan Muslim League (N) (“PMLN”) due to his affiliation with the Pakistan Tehreek-e-Insaf (“PTI”) and refusal to switch to PMLN.  His claim was set out in detail in the Director’s decision at [9] and the Board’s decision at [23]. 

3.  In gist, the applicant claims that before the May 2013 general election, he joined PTI and was actively involved in the political rallies and promotion of his party.  On five to six occasions, he was threatened by the supporters of PMLN, who were armed with guns, and told to change his political allegiance.  One day after PMLN won the election, four PMLN supporters came to him and again demanded him to join their party.  When he refused, they fired gunshots in the air.  The applicant ran away unhurt. Later that day, the police arrested him for firing gunshots in public place. He was detained for 1.5 months before being allowed bail.  During the police detention, he was assaulted, tortured and told to join the PMLN.  Fearing for his safety, he went to Islamabad to stay with his friend, and did not answer the bail.  Then one day, on the invitation of his friend named Babar, he went to his office in Lahore, only to find that Babar had changed his allegiance from PTI to PMLN and that supporters of PMLN were in his office waiting for him. They assaulted him and fired many gunshots in the air after he refused to join PMLN.  He managed to escape after a crowd gathered on hearing the gunshots.  He escaped to Karachi and later left for Hong Kong. 

4.  By his decision dated 10 April 2017, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3], BOR 3risk^[4] and BOR 2 risk^[5] grounds.   

5.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal at an oral hearing held on 9 October 2018 during which the applicant was represented by a lawyer assigned by the Duty Lawyer office.  The applicant gave evidence and answered questions from the Board.  By its decision dated 1 February 2019, the Board dismissed the appeal.  

6.  In summary, the Board noted that the applicant did not make a non-refoulement claim at the earliest opportunity and had delayed for 2.5 years until his arrest by the police, for which he had provided no justification.  For the reasons given in [27] to [41] of its decision, the Board found the applicant’s case and evidence ridden with many serious internal and external inconsistencies, and that he had not told the truth.  While the Board accepted he was a supporter or probably a member of PTI, it noted that he held no official position and the conflict between PTI and PMLN was not as serious as depicted by the applicant.  The Board did not accept the incidents of threat and assault claimed by the applicant, or that he was arrested, detained or tortured and falsely charged by the police or that he had jumped bail.  Having regard to the country of origin information and the submissions made at the hearing, the Board did not accept that the applicant would not be accorded appropriate state protection, even if he were subject to any real risks of harm.  The Board further found internal relocation viable, which would negate or reduce any risks that he would face.  The Board concluded that he failed to make out a case for non-refoulement protection under all applicable grounds. 

7.  On 21 February 2019, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  It did not contain any ground for seeking relief.  In his supporting affirmation, the applicant claimed that the PMLN was still influential in his area and other parts of Pakistan and he would be harmed or killed if he returned to his country. 

8.  The applicant did not request an oral hearing of his application.  The Judge dealt with the application on the papers.  The Judge refused to give leave to apply for judicial review and gave his reasons in [14] to [19] of the Form CALL-1 as follows:

“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13 (1) … Assessment of evidence and COI 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 the decision of the Board.”

17. His ground in support of this application does not assist his application. The fundamental basis for the Board’s Decision is that the Board rejected his evidence on the main facts in support of his claim. Therefore, the applicant simply has no factual basis to support his claim.

18. 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.

19. There is no evidence that shows that the applicant has any realistic chance of success in his intended judicial review.”

9.  The applicant filed the notice of appeal on 28 December 2021. It contained the following grounds of appeal:

“the [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

10.  The written submission put forward two grounds of argument as follows:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and entailing significantly implications for the applicant’s substantive right not to be subject to torture and his right to non-refoulement protection.  Hence, high standards of fairness are required: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45]; and ST v Betty Kwan[6]f Immigration [2014] 4 HKLRD 277.

The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if he could “find fault with the decision of the Immigration Officer”, whereas he should have considered matters such as the country conditions.

(2)  At common law, minimum standards of procedural fairness are required and the decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134].    

11.  At the hearing of the appeal, the applicant had nothing to add to what was already stated in his notice of appeal and written submission.

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].  They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 it is a fresh application for judicial review.

13.  In light of the established legal principles set out above, we are of the view that the arguments put forward by the applicant do not constitute viable grounds of appeal.  Our reasons are as follows:

(1)  The complaint in the notice of appeal about the Board’s use of and reliance on country of origin information (“COI”) is a vague and general assertion, devoid of particulars.  The applicant has not identified which piece of COI relied on the Board was incorrect or outdated, and/or how that would impact on the correctness of the Board’s final conclusion on each of the applicable grounds.  

(2)  The complaint under Ground (1) of the written submission that the Board did not approach the appeal as a rehearing is factually incorrect.  It is evident from the Board’s decision that it did not, as the applicant suggested, approach the appeal simply by trying to see if the Director’s decision was justified.  On the contrary, the Board had considered and analysed the applicant’s evidence in detail before reaching its own findings and conclusion the application.

(3)  The applicant has not explained how the cases and legal principles cited in the written submission relate or apply to his case or appeal

(4)  The applicant’s assertion that his life will be threatened if he were refouled cannot stand in light of the Board’s rejection of his core case and the evidence underlying his claim.  Assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision maker.  The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness.  As held in (1) to (3) above, the applicant has not advanced any arguable ground in this appeal to challenge the findings on credibility and facts made by the Board.

(5)  In the Court of First Instance, the applicant had not put forward any substantive ground to support his intended judicial review.  The Judge concluded that the intended judicial review had no prospect of success.  For the reasons given above, none of the arguments raised in the notice of appeal and the applicant’s submissions can amount to arguable ground for the intended judicial review.  In the circumstances, there is no proper basis for this court to interfere with the Judge’s refusal of the application for leave to apply for judicial review.           

14.  In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We agree with the Judge that the intended judicial review has no reasonable prospect of success and that the application for leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.

[1] [2021] HKCFI 3738.

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[5] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.

[6] It was mistakably cited as ST v Director of Immigration.