RE ZAFAR IQBAL

CACV 300/2023, [2024] HKCA 541

On Appeal From [2023] HKCFI 2388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 300 OF 2023

(ON APPEAL FROM HCAL NO 1474 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 21 September 2023 ([2023] HKCFI 2388)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 3 May 2019, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 26 October 2017.

2.  On 26 September 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Pakistan.  He last entered Hong Kong illegally on 13 April 2014 and on 12 May 2014 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if returned to Pakistan, he as a Shia Muslim would be harmed or killed by some local Wahabi Sunni Muslims in his home village over their religious disputes.  Details of the applicant’s claim were summarised by the Judge at [1] - [5] of the Leave Decision.

4.  By a Notice of Decision dated 26 October 2017 (“the Director’s Decision”), the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  By the decision dated 3 May 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision. The Board’s reasons were summarised by the Judge at [9] of the Leave Decision:

“9. In its decision the Board found no reliable evidence of any real intention of those local Wahabi Sunni Muslims to seriously harm the Applicant or any reason to specifically target him for harm, and that in any event in the absence of any state or official involvement that state or police protection would be available to the Applicant upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other areas of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.  On 30 May 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  The grounds in support of his application were summarised by the Judge at [10] of the Leave Decision:

“10. On 30 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he cited all sorts of legal principles and put forth various numerous grounds for his intended challenge as follows:

(1)  No reasonable basis for rejecting the Applicant’s claim;

(2)  Failure to consider the extended form of state acquiescence;

(3)  Failure to fully consider all the relevant COI in assessing the Applicant’s claim;

(4)  Irregularity of the decision-maker being a different person than the interviewing officer;

(5)  Procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;

(6)  Irrationality in failing to place weight on relevant COI and instead place weight on irrelevant information;

(7)  Irrationality in failing to consider that there is a consistent system of human right violations in Pakistan;

(8)  Irrationality in failing to consider if state protection exists in Pakistan;

(9)  Irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(10)  Procedural impropriety in failing to call for psychological and/or psychiatric reports or evaluations;

(11)  Procedural impropriety in applying the incorrect standard of proof; and

(12)  No proper basis for considering that internal relocation was available to the Applicant.”

7.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.  On 21 September 2023, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“11. These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to consider the extended form of state acquiescence or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Adjudicator fail to give reasonable basis for rejecting the claim or fail to consider human rights violations in Pakistan, or why it was necessary or relevant to call for psychological or psychiatric evaluations for his claim. As such I do not find any of his grounds reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THIS APPEAL

8.  In his Notice of Appeal filed on 26 September 2023, he only stated:

“THE HIGH COURT REFUSED MY LEAVE APPLICATION. I HAVE LIFE THREAT IN MY HOME LAND. I CAME HONG KONG FOR MY LIFE SAFETY. MY CASE OFFICER, ADJUDICATOR DID NOT GIVE ME JUSTICE. BY REFUSING LEAVE THE HIGH COURT TOO DID NOT GIVE ME JUSTICE.” (sic)

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 26 September 2023, the applicant lodged his written submissions on 12 October 2023.  In those submissions, he reiterated the factual basis and procedural history of his non-refoulement claim and asserted that his life would be in danger if refouled.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

11.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.  In our view, the applicant’s case is a non-starter. The applicant fails to identify or show with specific particulars any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of his allegations are proper grounds of appeal.  His appeal must fail on this basis alone.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

13.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.