BABAR IMRAN v. TORTURE CLAIMS APPEAL BOARD

CACV 114 /2024, [2025] HKCA 565

On appeal from [2024] HKCFI 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 114 OF 2024

(ON APPEAL FROM HCAL NO 3299 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 12 March 2024, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1]. The applicant filed a Notice of Appeal against this decision on 21 March 2024.

2.  The applicant is a national of Pakistan.  He last arrived in Hong Kong as a visitor on 11 February 2003 and subsequently overstayed. He was arrested by the police on 6 August 2005 for using an identity card relating to another person and for undertaking unauthorized employment, for which he was convicted and sentenced to imprisonment for 8 months.  He lodged his torture claim on 18 November 2005 which was rejected on 26 April 2012.  He lodge his non-refoulement claim on 24 October 2013.  His claim was made on the basis that, if refouled, he would be harmed or killed by Gul, a local gangster, because of a personal vendetta.

3.  The applicant was arrested by the police for possession of dangerous drugs on 5 April 2015.  He was convicted and sentenced to 4 months’ imprisonment on 20 August 2015.

The decision of the Director

4.  As the applicant’s torture claim has been rejected previously, the Director of Immigration (“the Director”) assessed the applicant’s non-refoulement claim on all applicable grounds other than torture risk^[2] under the unified screening mechanism, including BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5].  By a Notice of Decision dated 26 April 2017, the Director rejected the applicant’s claim. 

5.  The Director considered the fact that Gul did not cause serious harm or kill the applicant despite ample opportunities indicated that the applicant’s perceived risk of harm was not as real and imminent as claimed.  Regarding the applicant’s case relying on Article 19 of the Hong Kong Bill of Rights (“BOR 19”), the Director found no authority that shows that BOR 19 can independently give rise to non-refoulement obligation on the Hong Kong government and no arguable basis under BOR 19 in the applicant’s case.  The Director also assessed that state protection and internal relocation options are available to the applicant in Pakistan which further lower or negate any perceived risk.  

The decision of the Board

6.  The applicant attended the hearing of the appeal against the Director’s decision before the Board with his legal representative on 31 May 2018.  In light of the vagueness, contradiction and significant discrepancies in the applicant’s evidence as well as the lack of independently verifiable supporting evidence, the Board found that the applicant is not a witness of truth and that he has fabricated his claims.  The Board considered that the applicant would not face a real risk of being harmed should he return to Pakistan.  Although the Board agreed that it may be in the best interest of the applicant’s youngest child for the applicant to remain in Hong Kong, the Board did not accept that separating the applicant from his wife and child amounts to cruel, inhuman or degrading treatment or punishment, torture or persecution in the relevant sense.  The Board held that the applicant’s appeal fails on all applicable grounds and dismissed the appeal on 6 August 2019.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 5 November 2019 to seek leave to apply for judicial review against the decision of the Board.  He only stated in his supporting affirmation that the Board’s reasons are not strong and are unreasonable.

The judge’s decision

8.  The applicant attended the hearing scheduled before DHCJ Bruno Chan on 27 February 2024.  He did not provide any relevant details or elaboration as to why he thinks the Board’s reasons are not strong or reasonable in his application or at the hearing.  The judge found the applicant failed to clearly and properly identify any error of law or irrationality or procedural unfairness in his process before the Board or in the Board’s decision, so there is no reasonably arguable basis for his intended challenge.  The judge concluded there is no prospect of success in the applicant’s proposed judicial review and dismissed the leave application on 12 March 2024.

Grounds of appeal

9.  The applicant attached a statement written in Urdu to his Notice of Appeal, a translation of which was obtained by the court from the Court Interpretation services.  His grounds of appeal in the statement may be summarised as follows:

(1)  The applicant’s case is a true story.  He can provide supporting evidence and witness about his brother’s death.

(2)  People would come around their house to harass and threaten the children of the applicant’s first wife.  They would tell his children that they would murder the applicant when they see him. 

(3)  They came and took the applicant’s children on 1 September 2023 and he has no news of his children since then.  It is not easy to file a First Information Report (“FIR”) in Pakistan.  The applicant will send it to the court once he is able to file the FIR for his children.

(4)  Paragraph 9 of the judgment which says that the applicant married a Hong Kong girl in January 2011 is incorrect.  His last daughter was born in 2009 and he married the second time many years prior to that.

(5)  The dangerous drugs mentioned in paragraph 10 of the judgment did not belong to the applicant.  He had served the sentence without guilt.

(6)  The applicant’s brother was murdered in November 2004 so he considered himself safer in Hong Kong than in any city in Pakistan. If a person needs the police to do anything for him in Pakistan, he needs to constantly bribe the police otherwise the police will work against him.

(7)  The applicant does not have the money to move to a different city in Pakistan.

10.  The applicant has submitted a written consent to the disposal of the appeal on paper without an oral hearing.

Legal principles

11.  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.

12.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials and 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.

13.  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.

Analysis and disposition

14.  The applicant stated that the judge got the incorrect date of his second marriage but did not provide any supporting document in this respect.  Even if assuming that his submission is correct, he failed to show how this matter may assist his appeal as the date of his second marriage does not seem to be of direct relevance to any of his grounds of judicial review. 

15.  In respect of the death of the applicant’s brother, the Director had criticised the lack of supporting evidence regarding the applicant’s speculation that Gul had murdered his brother in the skeleton submissions at the appeal before the Board and had adduced newspaper articles showing that the preliminary conclusion of the police was that the brother was murdered by close companions over a money dispute which is contrary to the applicant’s speculation.  The applicant was legally represented at the appeal before the Board but failed to refute the Director’s criticism and evidence. In the present appeal, he failed to show there are errors of law or procedural unfairness or irrationality in the decision of the Board.

16.  The rest of the applicant’s grounds of appeal are just bare assertions.  He failed to demonstrate 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.

17.  For the above reasons, the appeal is devoid of merit and we dismiss it accordingly.

[1]  [2024] HKCFI 741

[2]  As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3]  This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]  This refers to 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).

[5]  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.