ALMAS KHAWAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 103/2023, [2024] HKCA 147

On appeal from [2023] HKCFI 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 103 OF 2023

(ON APPEAL FROM HCAL NO 1396 OF 2022)

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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.  On 29 March 2023, Deputy High Court Judge To refused to grant extension of time for the applicant to seek leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a notice of appeal against the said decision on 6 April 2023[2].

2.  The applicant is a Pakistani national. He claimed to have sneaked into Hong Kong from Shenzhen on 18 September 2013. He surrendered to the Immigration Department on 23 July 2014. He made a non-refoulement claim on 27 October 2014 on the basis that he will be harmed or killed by the father of his girlfriend, Anne Shelokh[3], if he is returned to Pakistan as he had an affair with Anne.

The decision of the Director

3.  By a Notice of Decision dated 30 December 2016, the Director of Immigration (“the Director”) rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk[4], BOR 2 risk[5], BOR 3 risk[6] and persecution risk[7].

4.  Taking into consideration the nature, severity, duration and effects of the threats and harm, the Director did not accept that the perceived ill-treatment from Anne’s father and his people, whether physical or mental, was as imminent, foreseeable and substantial as asserted. The applicant’s problem with Anne’s father is private in nature. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates any perceived risk.

The decision of the Board

5.  The applicant appeared at the hearing of his appeal against the Director’s decision before the Board on 11 April 2018. The Board did not accept any part of the applicant’s claims as his evidence is inconsistent with the background evidence. Even assuming that Anne’s father would want to harm or kill him, the Board assessed that the applicant has a safe and reasonable relocation alternative and does not face a real risk of any form of harm upon return to Pakistan. Thus, the Board rejected the appeal on 1 June 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 2 December 2022 to seek leave to apply for judicial review against the decision of the Board. His application was seriously out of time for more than four years. He put forward 14 grounds for his intended challenge, which have been set out in paragraphs 19 to 24 of the judge’s decision.

The judge’s decision

7.  At the hearing before the judge on 1 March 2023, the applicant confirmed that he had no complaints about error of law, procedural unfairness or irrationality, and he only complained that the Board did not believe his evidence[8].

8.  The judge held that the Board’s finding that the applicant had failed to prove the factual basis to support his claim is solely within the province of the Board, which the court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality. The judge found no error of law or irrationality in the Board’s decision or procedural unfairness at any stage of the non-refoulement proceedings. The judge also considered that the Board’s decision was utterly without fault. The applicant admitted that he had returned to Pakistan in December 2018 and stayed there for four years[9]. This has been taken as a demonstration of the applicant’s safety in his home country. The judge concluded there is no realistic prospect of success in the proposed judicial review and no reasonable explanation for the substantial delay in taking out the leave application. Thus, the judge refused the application for extension of time to apply for leave to seek judicial review and the leave application on 29 March 2023.

Grounds of appeal

9.  In the notice of appeal filed on 6 April 2023, the applicant set out the following grounds of appeal:

“1. The Applicant submits that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

2. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age [sic] to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

3. The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that the Applicant had failed to advice any credible evidence to prove material elements of his claim.

4. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

5. Surprisingly, the director in his Decision while referring to relevant COIs. Kept including meaning which suited his pre-conceived conclusion. This was a clear case of unfair attitude shown by the Director which in itself is enough to render his Decision void.”

10.  The contentions in his written submissions may be summarized as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision-maker.

(2)  The Board erred in approaching the matter by trying to see whether he could find fault with the decision of the Immigration Officer and failed to scrutinize the Director.

(3)  The Board ought to have considered matters such as the country conditions of the applicant’s country of origin but did not do so.

(4)  The decision-maker is under a duty to act fairly.

Legal principles

11.  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.

12.  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 the decision of the Board.

13.  In determining an appeal, 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

14.  The applicant’s grounds of appeal and submissions are just bare assertions without evidence in support. He failed to demonstrate that the judge had made errors of law, failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. In particular, the applicant failed to put forward any evidence or arguments to show that the judge was wrong in finding that the applicant’s return to Pakistan in December 2018 and having stayed there for four years demonstrated the applicant’s safety in his home country.

15.  For the above reasons, all of the applicant’s grounds of appeal are devoid of merit. We therefore dismiss his appeal.