SABIR KAMRAN v. TORTURE CLAIMS APPEAL BOARD

CACV 458/2022

[2025] HKCA 887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 458 OF 2022

(ON APPEAL FROM HCAL NO. 162 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 21 November 2022, the Applicant, who is acting in person, filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 10 November 2022 (“the Order”)  refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 2 January 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 15 February 2018.

2.  Despite the directions of the Registrar of Civil Appeals of 14 December 2022 to the Applicant, the Applicant failed to lodge skeleton argument by the stipulated time of 9 January 2023. Accordingly, we will deal with this appeal on paper. 

BACKGROUND

3.  The Applicant is a national of Pakistan.  The Applicant entered Hong Kong illegally on 24 April 2009 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a torture claim[1] on the basis that if he returned to Pakistan, he would be harmed or killed by Habib over their monetary dispute.  After the torture claim was rejected, he then sought non-refoulement protection on the same basis.  Details of the Applicant’s claim were summarised by the Judge at §§1-6 of the CALL-1 Form. 

4.  By a Notice of Decision dated 15 February 2018, the Director dismissed the Applicant’s non-refoulement claim on the remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. 

5.  The Applicant appealed the Director’s decision to the Board.  On 2 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). 

6.  The Board found inconsistencies, discrepancies, and contradictions in the Applicant’s evidence as to his account of events that occurred in Pakistan.  The Board doubted his credibility and rejected his claim of fear of harm from Habib or the police or of discrimination as a Christian from the Muslim community that caused him to leave his country for Hong Kong.  The Board rejected the Applicant's claim of having ever been threatened or harmed or ill-treated by Habib or the police or the community in general or that he would face any such risk from any of them upon his return to Pakistan and concluded that his claim for non-refoulement protection failed on all applicable grounds. 

THE JUDGE’S DECISION

7.  On 17 January 2019, the Applicant filed a Form 86 against the Board’s Decision. 

8.  On 10 November 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 63 – 102 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the findings of the Board.”

THIS APPEAL

9.  In his Notice of Appeal dated 21 November 2022, the Applicant put forward the following ground(s)  of appeal:

“…the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” [sic]

10.  In his 4-page written submissions, the Applicant recited a number of cases and made generic submissions on the general principles of law relating to non-refoulement claims. 

DISCUSSION

11.  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)). 

12.  Further, the assessment of evidence, country of origin information, 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.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case. 

13.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 10 November 2022, and has failed to raise any viable ground of appeal against the Order. 

14.  The Applicant’s appeal has no merits, and is dismissed.