RE MUHAMMAD TARIQ TAHIR

CACV 295/2022, [2023] HKCA 528

On Appeal From [2022] HKCFI 2218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 295 OF 2022

(ON APPEAL FROM HCAL NO. 656 OF 2019)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

I. The appeal

1.  This is an appeal against the decision (the ‘Decision’)  of Deputy High Court Judge K W Lung of 21 July 2022.  The Judge refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 28 February 2019, which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’)  dated 10 February 2017 rejecting his claim for non‑refoulement protection under all applicable grounds except torture claim which was already determined earlier on 19 September 2012.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.  The applicant is a national of Pakistan.  He first entered Hong Kong as a visitor in September 2001.  He was removed in September 2002 for illegally remaining in Hong Kong.  He returned in November 2009 and made a torture claim.  It was rejected by the Director in September 2012, and his petition to the Chief Executive was dismissed in November 2012.  In May 2013 he made a fresh non‑refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his business suppliers for debts incurred by his business partner.

4.  The background facts have been summarised by the Judge at [5] of the Decision.

III.  The Director’s Decision

5.  The Director’s decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against persecution except torture (the ‘Director’s Decision’).

IV.  The Board’s Decision

6.  After a hearing held on 7 December 2018, the Board dismissed the applicant’s appeal (the ‘Board’s Decision’).

7.  The applicant attended the hearing before the Board and was assisted by an interpreter.  He however refused to answer any of the Board’s questions.  The Board found that without the joint endeavors of both the applicant and the Board in the assessment, the Board cannot but find that the available evidence in writing was flat, vague and mere assertions.  There was no oral evidence from the applicant suggestive of personal and lived experience.  The Board was not satisfied that the applicant faced a real risk of harm if the applicant is returned to Pakistan.  No credence could be attached to any of the applicant’s statements except for his nationality.  He was not a witness of truth.

V.  Decision of the Judge

8.  The applicant filed a Form 86 and a supporting affirmation on 8 March 2019, but did not identify any ground for seeking relief in either document.

9.  The applicant did not request an oral hearing.  The Judge dealt with his application on paper.

10.  The Judge held that the applicant was obligated under the Immigration Ordinance (Cap. 115)  (‘Ordinance’)  to co‑operate with the Director and the Board for the assessment of his claim.  His refusal to do so is a contravention of the Ordinance, and he must bear the consequences.  He had been told by the Board the risks of the Board not believing his evidence if he refused to answer the Board’s questions. 

11.  The Judge was not satisfied that there was any real prospect of success in the applicant’s intended application for judicial review and accordingly refused his leave application.

VI.  Grounds of appeal

12.  In the Notice of Appeal filed on 1 August 2022, the applicant claimed that he was ‘not satisfied with’ the Decision because it is ‘away from facts and reality which are related with my case’ and that there is no transparency in the Decision.

13.  In the written submissions filed on 11 August 2022, the applicant made further vague complaints about the decision makers ignoring relevant facts and the lack of transparency, without any particulars or elaborations.  He also made some vague and unsubstantiated assertions about ‘political influence’ and ‘corrupt environment’. 

VII.  Our view

14.  In our view, the applicant’s submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing his application.

15.  We will repeat the approach of this Court in dealing with cases of this nature :

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 the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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 their decisions.

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. In the determination for 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 a refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  In our view, the applicant’s appeal is devoid of any merits.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.