RE AYUB WAQAS

CACV 122/2022

[2022] HKCA 1049

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 122 OF 2022

(ON APPEAL FROM HCAL NO. 431 of 2019)

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JUDGMENT

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Hon Barnes J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Hon Campbell-Moffat J (“Judge”) on 14 March 2022[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 20 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 27 April 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Pakistani national.  He surrendered himself to the Immigration Department on 13 August 2015 for entering and remaining in Hong Kong without permission.  The applicant raised his non-refoulement claim on 18 November 2015.

3.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by Shia Muslims who had previously assaulted and kidnapped him on several occasions.  The factual background was set out at paragraphs 8.1 to 8.44 of the Director’s decision.

4.  By notice of decision dated 27 April 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  Those applicable grounds are BOR 3 risk[2], persecution risk[3], torture risk[4] and BOR 2 risk[5].

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 7 November 2018, during which the applicant answered questions from the Board.  The Board found that the applicant’s evidence was not credible, because his evidence was internally inconsistent and conflicted with credible country of origin information.  The Board raised these inconsistencies with the applicant during the hearing and also questioned him about country of origin information.  The applicant’s explanations and responses failed to impress the Board and the Board concluded that the applicant had fabricated his claims.

6.  Due to its adverse finding on the applicant’s credibility, the Board found that there was no real risk of harm in the event of refoulement. 

7.  Therefore, on 20 December 2018 the Board dismissed the applicant’s appeal on all the applicable grounds and affirmed the Director’s decision.

Decision of the court below

8.  On 15 February 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation, his stated ground for judicial review was that his dangerous situation was disregarded.

9.  Following consideration of the application on paper only, on 14 March 2022 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [13] of the Form CALL-1 as follows:

“12. Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable⁴.

13.& In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Appeal to this Court

10.  On 12 April 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, the applicant merely stated that he wished to challenge the decision under appeal, but did not raise any grounds of appeal.

11.  The Registrar of Civil Appeals directed on 18 May 2022 that the applicant must lodge his skeleton argument on appeal not less than 28 days before the hearing of the appeal, failing which the hearing date would be vacated and the appeal would be disposed of on the papers.

12.  The applicant has failed to lodge any skeleton argument as directed.  The hearing date is vacated and this appeal is disposed of on the papers without a hearing.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [6]; Re Md Shohel Sheak [7]; and Re Limbu Birkhaman [8]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

14.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant, and in the absence of any grounds that point to any error by the Judge, the appeal should be dismissed.

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to its adverse finding as to the applicant’s credibility.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board.  The Court will not interfere with such assessments unless they are reversible on public law grounds. 

16.  The applicant has not raised any errors or concerns as regards the Board’s assessment of credibility.  Indeed, as mentioned above, he has not raised any grounds of appeal at all in his Notice of Appeal.  There are no valid public law grounds for reversing or interfering with the Board’s decision to reject the claim. 

17.  Having considered the materials before us, we are of the view that the Judge was right to refuse leave.  There are no reasonably arguable grounds to challenge her decision.

18.  For these reasons, we are of the view that the appeal has no merits and accordingly this appeal is dismissed.

[1] [2022] HKCFI 680, HCAL 431/2019

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] [2018] HKCA 524 at paragraph 14

[7] [2018] HKCA 714 at paragraph 13

[8] [2019] HKCA 50 at paragraph 11