RE HAIDER KHALIL

CACV 356/2020

[2021] HKCA 223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 356 OF 2020

(ON APPEAL FROM HCAL 2448/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 29 July 2020, Deputy High Court Judge K W Lung (“the Judge”) refused 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 (“the Board”) dated 19 October 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 24 September 2015 and 16 March 2017 rejecting the applicant’s non-refoulement claim.

2.  On 11 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 19 June 2012 and was arrested by police the same day.  The applicant lodged his non-refoulement claim on 21 June 2012.

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by Nawab Farhat Ullah Khan, a Pakistan Muslim League (N) (“PML(N)”) politician or his allies, or by the Pakistani authorities because PML(N) was in power.  The factual background was succinctly summarized by the Judge at [5] of the Form CALL-1 ([2020] HKCFI 1735).

5.  By notices of decision dated 24 September 2015 and 16 March 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], while the latter covered BOR 2 risk[4]. 

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 22 November 2017, during which the applicant gave testimony.  The Board found that the applicant’s evidence lacking in satisfactory or logical details and it would not sensible to believe the same.  The Board considered that the applicant’s injuries were minor and did not amount to torture or cruel, inhuman or degrading treatment or punishment.  It also considered that state protection was available.  Further, coupled with the passage of time since the incidents in question, the Board considered that the applicant failed to establish that there was a real risk of harm under any of the applicable grounds.

7.  Thus the Board dismissed the applicant’s appeal on 19 October 2018 on all the applicable grounds.

Decision of the court below

8.  On 2 November 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  His grounds for relief on judicial review of the Board’s decision, were summarized by the Judge at [12] of the Form CALL-1.

9.  On 29 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [17] of the Form CALL-1 ([2020] HKCFI 1735, HCAL 2448/2018) as follows:

“ 11. The applicant filed Form 86 dated 2 November 2018 for leave to apply for judicial review of the Board’s Decision.

12. He relied upon the grounds below in support of his application.

The Board’s Decision was unreasonable and wrong and the Adjudicator did not give him sufficient time and chance to arrange relevant evidence for his case.

The Director did not give weight to state acquiescence.

The Director failed to consider his argument and give weight to his evidence.

The Director failed to attain high standards of fairness and was unfair.

DISCUSSION

13.  The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. His lawyer had explained the Director’s Decision to him and his friend had explained the Board’s Decision to him.

14.  I put the Board’s findings to him and asked him if he had any comments on them. He said that he had no comments.

15.  Of the grounds above, only ground (1) refers to the Board, the others refer to the Director, which are irrelevant. As to ground (1), it is only his opinion without any evidence in support of it. He did not identify what evidence he wished to adduce for his case. They fail.

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.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Appeal to this Court

10.  On 11 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which his stated grounds of appeal were that the Board and the Director had not weighed or realized the gravity of his circumstances and that he should be given an opportunity to plead his case properly.

11.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

12.  This Court directed on 17 December 2020 that the applicant must lodge his written submissions on appeal by 14 January 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

13.  The applicant failed to lodge any submissions as directed.  The hearing date was vacated and this appeal is processed on paper without oral hearing.

Legal principles

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of 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].  For the purpose of this appeal, the salient principles are as follows:

(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 issue at hand, the Court should not usurp the role of the Board.  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.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.  In his grounds of appeal, the applicant did not provide any details or particulars in support. He did not identify any specific errors in the Judge’s decision or any other specific grounds for reversing the Judge’s decision. 

16.  General assertions without particulars are not effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

17.  The grounds of appeal did not spell out how the applicant was not given opportunity to plead his case properly.  At the hearing before the Board, he was able to testify.

18.  The Board rejected the applicant’s claim for non-refoulement protection mainly based on its findings that his evidence was not believable and that his injuries were minor and did not amount to torture or cruel, inhuman or degrading treatment or punishment. Moreover, the Board considered that state protection was available.  Hence, the Board found the applicant failed to establish that there would be a real risk of harm in the event of refoulement.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

19.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

20.  For these reasons, this appeal is dismissed.