RE DAR WASIF HUSSAIN

CACV 73/2022

[2023] HKCA 48

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2022

(ON APPEAL FROM HCAL NO 2814 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”)  on 10 February 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 2 October 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 10 January 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Pakistani national.  He surrendered himself to the Immigration Department on 20 October 2015, and stated that he had entered Hong Kong without permission on 10 October 2015.  He raised his non-refoulement claim on 15 June 2016.  His claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by the Pakistan Muslim League (Nawaz)  (“PML(N)”)  and/or by a PML(N)  politician known as Nadeem because the applicant had switched allegiance to the Muttahida Qaumi Movement (“MQM”).  The factual background was summarized at paragraph 4(i)  to (xiii)  of the Board’s decision.

3.  By notice of decision dated 10 January 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was fixed for 3 September 2018, but the applicant did not attend the hearing, and did not respond to the Board’s request that he advise the Board of his reasons for his non-attendance and/or provide any supporting documentation.  Proceeding to determine the appeal on the basis of the written materials, the Board considered that the applicant had failed to establish any of the claims he made, having regard to the generalized nature of the applicant’s evidence which lacked the level of detail expected from someone who had been involved in a political party for the time alleged.  Specifically, the Board did not accept that the applicant was initially involved in the PML(N)  or switched allegiance to the MQM.  Further, the Board noted that the applicant was able to leave Pakistan using a genuine passport and via legal channels, and that his family continued to reside in the same area in Pakistan.  In conclusion, the Board did not accept the applicant’s factual claims, and found that there was no real risk of harm in the event of refoulement.

5.  Accordingly, in its written decision issued on 2 October 2018, the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

6.  On 10 December 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision, however he did not raise any grounds for judicial review.  He did not set out any ground for judicial review either in the Form 86 or in the supporting affirmation.

7.  Following hearings on 11 and 20 January 2022 at which the applicant appeared in person before the Judge, on 10 February 2022 the Judge issued his decision in writing, refusing to grant leave to apply for judicial review.  The reasons were set out at [14] – [19] of the Form CALL-1 as follows:

“ 14. At the first hearing scheduled for him on 11 January 2021, he was asked to put forward his grounds of application. He only repeated his case. The hearing was adjourned to 20 January 2021 for him to seek legal advice and consider his grounds of application.

15. At the second hearing on 20 January 2021, the Applicant produced a written statement stating that he would like to request the Court to reconsider his case and allow him to stay in Hong Kong. He repeated that his problem in Pakistan is not solved. He said he would hold the Hong Kong government responsible if he faces any problem upon his return to Pakistan. He was disputing the finding of fact by the Board. None of these grounds were relevant in an application for leave to apply for judicial review.

16.  The Applicant was explained that the role of the court in judicial review is not to re-assess the non-refoulement claims afresh and that the court would scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  The Court went over these three crucial issues with him.  He was unable to raise any error of law.  He had no complaint about unfairness in the proceedings before the Board or irrationality in the Decision.  Actually, he had not attended the hearing and had not responded to the Board’s letter inviting explanation for his absence.

17.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to Pakistan.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Pakistan and that in any event state protection and internal relocation are viable options to prevent or avoid the risk.

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

19.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant not credible and that his fear of torture by the police and harm by Nadeem and his PML-N members not well-founded.  It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of internal relocation.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively 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 and irrationality.  The Decision was utterly without fault.  There are no such vitiating elements in the Decision.  The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

Appeal to this Court

8.  On 11 February 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, he stated that he will show the Board’s error(s)  that the Judge did not find, and that he did not get agree with the High Court judgment.  However, he did not provide any details or particulars of these assertions.

9.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

10.  The applicant lodged his written submissions on appeal on 25 February 2022, in which he briefly reiterated the factual basis for his claim as well as the procedural history, but did not identify any specific grounds of appeal or any errors in the Judge’s decision.

Discussion

11.  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 [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  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, 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. 

12.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

13.  In the present case, the Board did not accept the applicant’s factual claims and rejected his claim for non-refoulement protection, due to the unconvincing and generalized nature of the applicant’s evidence, which lacked the level of detail expected.  Also, the Board noted that the applicant was able to leave Pakistan via legal channels and that his family continued to reside unharmed in the same area in Pakistan.  Thus the Board found that there was no real risk of harm in the event of refoulement.  These are findings open to the Board based on the evidence.  The court will not interfere with such assessments unless they are vitiated on public law grounds.  There are no such grounds in this case.

14.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

15.  For these reasons, this appeal is dismissed.