KHAN MEHDI HASSAN v. THE DIRECTOR OF IMMIGRATON AND ANOTHER

CACV 497/2019

[2020] HKCA 401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 497 OF 2019

(ON APPEAL FROM HCAL NO 528 OF 2018)

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J U D G M E N T

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Hon Alex Lee J (giving the Judgment of the Court):

1.  This is the appeal against the decision of Deputy High Court Judge Bruno Chan on 22 October 2019[1] refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim.

2.  The applicant is a 49-year-old national of Pakistan who entered Hong Kong illegally on 5 February 2016.  He was arrested by the police on 11 March 2016 and raised the non-refoulement claim on 13 March 2016.  His claim was made on the basis that he will be harmed or killed by a group of Wahhabi Muslims if he returns to Pakistan because he and his family are Shia Muslims.

The Director’s decisions

3.  By a Notice of Decision dated 25 August 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5]. 

4.  In rejecting the applicant’s non-refoulement claim, the Director found that the low intensity and frequency of ill-treatment from the Wahhabi Muslims in the past is indicative of low future risk of harm upon the applicant’s return to Pakistan.  The Director noted also that there is no indication that the government of Pakistan has been involved in, been indifferent to or provided any form of encouragement to the applicant’s enemies in harming him.  The Director also noted that the applicant and his family were free from trouble from the Wahhabi Muslims after leaving the village.  The Director considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  It was considered that the fact of the applicant’s case is such that it does not engage BOR 2 risk.

The Board’s decision

5.  The applicant attended the hearing of the appeal against the Director’s decision on 4 December 2017. The Board found that there was nothing in the applicant claims which indicates any reasons for him to be specifically targeted by the Wahhabis.  The Board held that the applicant has failed to establish that he would face a real risk of being harmed upon return to Pakistan.  The Board considered that in any event the applicant has safe alternatives if it would be unsafe for him to return to his home area.   Therefore, the Board rejected the appeal on 14 May 2018. 

The intended judicial review

6.  The applicant had filed a Form 86 and an affirmation on 29 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  That was even before the Board handed down its decision on the appeal.

The judge’s decision

7.  The judge heard the leave application on 24 January 2019.  Based on Re Moshsin Ali[6], his lordship held that it was not open to the applicant to challenge the Director’s decision by way of judicial review as the Director’s decision is not susceptible to judicial review once an appeal to the Board was pursued.  The judge also considered that the applicant could not file his leave application for his intended challenge against the Board’s decision when the decision was not yet available.  Furthermore, it has been established by both the Director and the Board in their respective decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan.  Therefore, the judge held that there was no error of law or procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board.  As such, the judge refused the applicant leave on 22 October 2019.

The grounds of appeal

8.  The applicant filed a Notice of Appeal against the decision of the judge on 28 October 2019.  He stated in his Notice of Appeal that he was not satisfied with the decision because it would lead his life towards more danger and that he has problem in his own country.

9.  His grounds of appeal stated in his written submissions may be summarized as follows:

(1)  His enemies are still looking for his whereabouts.  Whenever they see him, he will be killed by them.  Even the police also cannot protect him from them.  His enemies have lots of manpower and strong political support which make them so powerful.

(2)  Death and torture in police custody of innocent persons are common in his country and people who are responsible do this freely due to their power.  Even if the police arrested the culprits sometimes, they could bribe the police and come out due to the corrupt system.

Legal Principles

10.  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[7].

11.  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.

12.  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.

13.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

Analysis and disposition

14.  An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below: Re Qadir Sher [8].  Therefore, the Court of Appeal will not entertain the applicant’s new ground (ground (2) above) which was not raised in the original leave application at the Court of First Instance. 

15.  Furthermore, in this appeal the applicant’s grounds are just bare assertions without particulars or evidence in support.  The applicant has not pointed out any errors of the judge.  He has no viable ground to reverse the judge’s decision.

16.  There is no merit in any of the applicant’s grounds and no prospect of success in the intended application for judicial review. Accordingly, we dismiss the appeal.