RE SUBHANI TOSEEF

CACV 352/2022, [2024] HKCA 137

On Appeal From [2022] HKCFI 2581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2022

(ON APPEAL FROM HCAL NO 2182 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 19 August 2022, by which the Deputy Judge refused the applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2581).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 20 September 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 11 March 2015 and 31 May 2017 (collectively referred to as “the Director’s Decisions”) rejecting the applicant’s non-refoulement claim.

3.  On 30 August 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we have proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Pakistan.  He last entered Hong Kong illegally on 11 July 2009 and was arrested by the police for illegal remaining on the same date.  On 13 July 2009, he lodged a torture claim, which was subsequently taken by the Director as a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his cousin Nadeem due to a land dispute.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

5.  By the Director’s Decisions, the Director dismissed his non‑refoulement claim on all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].  The applicant then appealed against the Director’s Decisions to the Board.  The Board heard the matter on 9 August 2018 and the applicant gave evidence.

6.  By the Board’s Decision, the Board dismissed the applicant’s appeal.  In essence, after considering the available evidence, the Board found that the applicant was not a credible witness and had fabricated his claim to support his application for non-refoulement protection.  The Board found that the applicant’s evidence was inconsistent as to whether he was attacked by Nadeem and whether he was present in the house during Nadeem’s visit.  The Board further noted that that he had no documentary support such as land registration for his claim.  The Board further considered that the applicant’s delay in departing Pakistan was inconsistent with someone who genuinely feared a risk of harm.  Accordingly, the Board refused to accept that he would face a real risk of harm upon refoulement and dismissed his appeal on all applicable grounds.

The Leave Decision

7.  On 10 October 2018, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision.  No ground was given in his Form 86 and in his supporting affirmation, the applicant only stated that the Immigration Department disregarded his dangerous situation.  As the applicant did not request for an oral hearing, the Deputy Judge considered his application on paper.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review.  His reasons were set out in detail at [15] ‑ [21] of the Leave Decision:

“15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …Assessment of evidence and COI 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.’

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  The reason given by the applicant is not valid reason to challenge the Board’s Decision from the applicant.

19.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

9.  On 30 August 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, he only stated:

“I would like to reject and review the decision made by Torture Claims Appeal Board on my case. They disregard my dangerous situation.” (sic)

10.  Pursuant to the directions of the Registrar of Civil Appeals dated 30 August 2022, the applicant lodged his written submissions on 13 September 2022.  In those submissions, he alleged that the Board’s Decision was unfair given the lack of understanding of his home country situation.  He further claimed that Pakistan was fraught with problems on human rights issues and the Board’s Decision was only based on state report without understanding the cultural context in Pakistan.  The applicant claimed that the security forces were unaccountable for human rights violations and that as a Muslim country, it would be easy to track people down and it would be likely that they would be killed.  He thus claimed that there had been unreasonableness in the Board’s Decision and that there had been institutionalised bias that needed to be investigated.

Discussion

11.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

13.  In our view, the applicant’s allegations have no substance.  At the outset, the applicant’s complaints in the present appeal are mainly directed at the Board and fail to point to any error of the Leave Decision.  His complaints are also all general and vague assertions without specific particulars or evidence in support.  They therefore do not constitute proper grounds of appeal.  See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. This appeal must fail on this basis alone.

14.  Further, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: 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 our view, there plainly is none in the present case.

15.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.