RE KHALIQ ABDUL

CACV 463/2020

[2021] HKCA 722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 463 OF 2020

(ON APPEAL FROM HCAL 793 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr KHALIQ Abdul, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 2 September 2020 refusing him leave to commence judicial review proceedings (“Judge’s Decision”).  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 2 May 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 14 February 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Pakistan now aged about 30, is a fear of being harmed or even killed by the family of his ex-girlfriend, Jamila (“Jamila”) if he should return to India because of (1) his love affair with Jamila and (2) the difference in political allegiance between him (a supporter of the Pakistan Muslim League) and Jamila’s family (which, he believes, was connected with the Pakistan People’s Party).  The circumstances said to have given rise to such alleged fear were summarised in detail in paragraph 7 of the Director’s Decision and in paragraphs 26 to 37 of the Board’s Decision and in gist in [2] to [5] of the Judge’s Decision embodied in the Form CALL-1 dated 2 September 2020 [2020] HKCFI 2210 (“Form CALL-1”).  

3.  Briefly:

(1)   In 2012, after dating for about 2 years, the applicant and Jamila decided to get married.  His proposal to Jamila’s family was, however, turned down due to, he believes, Jamila’s family’s higher caste and social status. 

(2)   The applicant was warned to end the relationship.  Jamila’s father and brothers verbally abused and threatened to kill the applicant whenever they encountered him. 

(3)   In particular, one or two days after the rejection of the applicant’s proposal, a scuffle occurred and resulted in some scratches to the applicant’s face and neck.  He was rescued by neighbours.

(4)   Feeling stressed, the applicant travelled to China.  After spending 5 days in China, the applicant returned to Pakistan and took shelter with a distant relative in Karachi for about a month, during which he (not having changed his mobile phone number) received threatening calls from Jamila’s father or brother who claimed to have found his whereabouts.  Other than these calls, his time in Karachi was otherwise uneventful. 

(5)   Then, in around June 2013, when the applicant was at home, Jamila came to tell him that she did not wish to enter into the marriage arranged by her parents and that she would only marry the applicant.  Jamila’s parents, siblings, relatives and her brother’s friends came to the house to beat up the applicant.  Jamila’s brother even raised a gun to the applicant and threatened to kill him.  After intervention by some neighbours, Jamila’s family took her away.  It took the applicant 20 to 25 days to recover from his injuries.

(6)   Although the police noted down the applicant’s report of the incident, they refused to offer any help as they considered his relationship with Jamila prior to marriage illegal.

Entry into Hong Kong, lodgment and processing of NRF Claim and other developments

4.  In July 2013, the applicant decided to come to Hong Kong after learning about the asylum system here.  He departed for Guangzhou first on 3 August 2014 with his own Pakistani passport.  He then entered Hong Kong illegally, and was arrested by the police, on 7 August 2013.    

5.  He applied for asylum with the Hong Kong UNHUR in mid-August 2013 and was referred to the Hong Kong Immigration Department to lodge the NRF Claim on 10 March 2014.  He later submitted a Non-refoulement Claim Form dated 9 January 2017 and some supporting documents[1] on 3 February 2017.  In processing the NRF Claim, the Director’s representatives interviewed the applicant on 6 February 2017.  He then had legal advice and representation from the Duty Lawyer Service.

6.  Pending the determination of the NRF Claim, the applicant has married a Hong Kong-born Pakistani lady on 23 April 2015.  They have 2 children.  The elder daughter is being taken care of by the applicant’s mother in Pakistan.  On 28 September 2016, the applicant applied for a HKSAR dependent visa, which application is still being processed.

7.  As for Jamila, the applicant has had no contact with her since leaving Pakistan but he knows that she has already got married in Pakistan.  However, he claims that her family continues to threaten his family whenever they met on the streets. 

Director’s Decision

8.  The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

(1)   First, based on the low intensity of past ill-treatment which in any event did not attain a minimum level of severity, the risk of harm from Jamila’s family upon the applicant’s return to Pakistan should be low.  Further, given that the applicant and Jamila are now both married to other people, the threat from Jamila’s family should have dissipated.   

(2)   Second, the availability of state protection would further lower or even negate the level of risk (if any).  There is objective country of origin information (COI) showing that reforms and improvements have been and are on-going in Pakistan. There are also alternative avenues to seek justice in Pakistan.

(3)   Third, reasonable internal relocation alternatives are available in such a vast and populous country as Pakistan.  It is not unreasonable or harsh for the applicant who is young, able-bodied and educated up to college level to move to another district of the country.

Appeal to Board and Board’s Decision

9.  The applicant appealed to the Board.

10.  The Board conducted a rehearing of the NRF Claim on 15 March 2018 at which the applicant, with suitable interpretation, testified before, and answered questions by, the Board.

11.  The Board did not see any substantial grounds for believing that the applicant would face a genuine and substantial risk of being subjected to any of the proscribed harms and dismissed the appeal on all 4 grounds for non-refoulement protection. The Board further found the alleged risk, if any, to be a localised one, which the applicant can avert by relocating to say Islamababad without undue hardship.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review issued against the Board under HCAL 793/2018 on 7 May 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision without stating any ground for relief in the Form 86.  In the supporting affirmation, the applicant merely told the court that he is married in Hong Kong with 2 children.

13.  As the applicant did not request for an oral hearing, after considering the application on paper, the Judge refused leave.  His reasons can be found in [13]-[15] of the Form CALL-1:

“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that risk of harm in the Applicant’s claim is a localized one and it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Appeal to Court of Appeal and grounds of appeal

14.  By a notice of appeal filed herein on 14 September 2020, the applicant appealed against the refusal of leave for judicial review on the following “ground” (sic):

“The judge of the High Court Mr Bruno Chan ordered me to refused my leave application. But I do not agree with him. As he could not find any good ground to cancel my leave. On the other hand my points was strong.

Judge could not tell me why he cancel my leave. He totally follow Director and Adjudicator suggestion. He did not find any law error of law. How funny!

No body consider my life.”

15.  On 15 April 2021, the applicant lodged written submission in which, after repeating in gist the matters underlying the NRF Claim, he said (sic):

“For my life safety I came Hong Kong. Immigration officer and adjudicator cancel my claim. Even the High Court did not grant my leave to apply for judicial review. If I return I will be kill by my enemy. So please grant my leave. If you refuse my application, Immigration of Hong Kong will send me Pakistan.

Please accept my apply to alive me.”

16.  The applicant appeared in person at the hearing of the appeal on 10 May 2021.  He alleged that his family still receives threats from his enemy and that if he returned to his country, they will take revenge on, or kill, him.

Discussion

17.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decisions of the Director or the Board afresh.  What we are concerned with is the Judge’s Decision, which is considered in light of the grounds of appeal raised by the applicant.  And we will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)] and [14(4)].

18.  On this note, we turn to the grounds of appeal.  We understand the applicant to be complaining that the Judge did not have, could not give the applicant any, good reasons for refusing him leave for judicial review but simply followed the decisions by the Director and the Board without independent thinking.  He further reiterated in his written and oral submissions that his life would be in danger in Pakistan.

19.  We find such purported grounds of appeal unarguable. 

20.  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.  In the instant case, the questions whether the applicant would be at risk of life or torture if he is refouled to Pakistan and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  In deciding whether the court may intervene by way of judicial review, the Judge need only scrutinise the Board’s decision for errors of law, procedural unfairness or irrationality.  His role was not to re-assess the NRF Claim.  See again Nupur Mst v Director of Immigration, supra, at [14(1)].  The Judge did not find any error of law because there was not any!  Indeed, the applicant himself had chosen not to advance in the Form 86 (or the accompanying affirmation) any error of law or other public law flaws in the Board’s Decision and the adverse findings of fact made therein against him.  The application for leave for judicial review of the Board’s Decision was therefore bound to fail.  That being the case, the Judge has every reason to refuse leave.

21.  To conclude, the notice of appeal and written and oral submissions before us do not set out any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was otherwise plainly wrong.  We cannot discern any either.  The much-repeated bare assertion in the applicant’s written and oral submissions that his life would be in danger if he is refouled to Pakistan is inconsistent with the findings of both the Director and the Board but the applicant has not raised any material error that undermines such findings of fact.

Disposition

22.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.