RE KHAN BAKHTIAR

CACV 66/2022

[2022] HKCA 518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 66 OF 2022

(ON APPEAL FROM HCAL NO. 278 of 2019)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 26 January 2022[1] refusing his application for leave to apply for judicial review. The Applicant’s Form 86 sought leave to judicially review the further decision of the Director of Immigration (“the Director”) dated 16 August 2017 rejecting his non-refoulement claim. As the applicant had appealed the Director’s decisions to the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”), the Judge treated the application as one to challenge the Board’s decision dated 30 November 2018 which dismissed his appeal against the Director’s decisions.

2.  The applicant has consented to the appeal being dealt with on the papers without an oral hearing.

3.  The applicant is a national of Pakistan aged 38. He entered Hong Kong illegally and surrendered himself to the Immigration Department on 15 September 2015. He later raised a non-refoulement claim.

4.  The applicant’s claim is based on his fear of being harmed or killed by his cousin, Sajid, arising out a land dispute. His claim was set out in detail in the Director’s first decision at [6] and the Board’s decision at [22] to [40], and summarised by the Judge in [1] to [3] of the Form CALL-1.

5.  In gist, the applicant claims that his father jointly owned a piece of land with his uncle, and the two families have been farming their respective portion of the land. The applicant’s family supported the Pakistan Muslim League (Narwaz) while his uncle’s family were members of the Pakistan People’s Party. One day in early 2015, a dispute broke out between his cousins and the applicant over the ownership of the land, and it developed into a scuffle. Later on, Sajid came with his brothers and some gangsters to the applicant’s home and threatened to kill and burn him. In about June 2015, when the two families were farming the land, an argument took place between the applicant and his brothers and their cousins, during which Sajid threatened the applicant. It developed into a fight and the applicant sustained some bruising and injuries. Thereafter, the applicant left home for Karachi, then went to Peshawar and Hyderabad before departing for Mainland China, from where he sneaked into Hong Kong.

6.  By his decision dated 31August 2016, the Director rejected the applicant’s claim having regard to the torture risk[2] , persecution risk[3] and BOR 3 risk[4] grounds.

7.  The applicant appealed the Director’s decision to the Board. In the meantime, the Director issued his further decision dated 16 August 2017 which assessed the applicant’s claim under the BOR 2 risk[5] ground and decided against it.

8.  The Board heard the applicant’s appeal at an oral hearing held on 22 October 2018 during which the applicant answered questions from the Board. By its decision dated 30 November 2018, the Board dismissed the appeal. In summary, the Board was not satisfied that the applicant was a credible and reliable witness and that he had exaggerated his claims in order to advance a claim for non-refoulement claim. The Board found the risk of harm to the applicant at the hands of Sajid and his family to be low. The Board was further of the view that internal relocation was reasonably available which would reduce or negate any risk of harm. The Board concluded that the applicant failed to make out a case for non-refoulement protection under all applicable grounds.

9.  On 29 January 2019, the applicant filed a Form 86 to apply for leave to judicially review the Director’s further decision. Other stating that he had some problems and his life was at risk in his native country, the applicant did not give any ground for seeking relief.

10.  The Judge dealt with the application on the papers. For reasons set out in [9] to [14] of the Form CALL-1, the Judge refused to give leave for applying judicial review and dismissed the application:

“9. On 29 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Further Decision of the Director dated 16 August 2017 as stated therein, but as that decision had clearly since been superseded by the Board’s Decision of 30 November 2018 and is no longer susceptible to judicial review: see AM v Director of Immigration [2014] 1 HKC 416, I shall therefore treat his application as one to challenge the Board’s decision, but in either case the Applicant has failed to put forth any proper ground for seeking relief in his Form or his supporting affirmation in which he merely repeated his claim as before that his problem in his home country has still not been resolved and that his life would still be at risk that he cannot return to Pakistan but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10. As such, 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 reasonably arguable basis for his intended challenge.

11. 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.

12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim 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.

13. 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.

14. 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.”

11.  The applicant filed the notice of appeal on 7 February 2022, in which the applicant stated that the decision was “away” from the facts and reality relating to his case; and there was no transparency in the decision.

12.  In his written submission, the applicant stated the following as his grounds of appeal:

(1)  Many things relating to his case were ignored and the decision was not transparent. The real situation in his country is very different from what people think

(2)  Powerful people will exert their political influence on the police and the other law making authorities, and he did not have the strength to fight with them. People who tried to stand against them just disappeared or were killed. It is very difficult to get justice in such corrupt environment.

(3)  People are helping him to solve his problem and he asked to be allowed to stay in Hong Kong until the problem is settled.

13.  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].

14.  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.

15.  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.

16.  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.

17.  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.

18.  Firstly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision. It is therefore incumbent upon the appellant to point to specific to errors in the reasons and decision of the judge. In the present case, the applicant did not provide any ground in support of his intended judicial review application. The Judge concluded there is no basis to interfere with the Board’s decision. None of the arguments he puts forward in this appeal has addressed the Judge’s decision or the reasons he gave for the decision. In the circumstances, there is no proper basis for this court to interfere with the Judge’s refusal of the application.

19.  Secondly, the matters now raised by the applicant relate to evaluation of risk of harm and country-of-origin information. They are matters for the Director and the Board, who are the primary decision makers. The Court may only review the findings made by the primary decision makers if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. The applicant has not advanced any substantive ground to challenge the findings of the Board. In particular, the Board had rejected the factual basis of the applicant’s haram; hence his assertion of risks of harm on return to his country has no factual foundation to stand on.

20.  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 leave to apply for judicial review should be refused. Accordingly, we dismiss the appeal.