Akhtar Junaid v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 519 /2019

[2020] HKCA 363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 519 OF 2019

(ON APPEAL FROM HCAL NO 2950 OF 2018)

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BETWEEN

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Before:  Hon Kwan VP and Barma JA in Court

Date of Judgment: 28 May 2020

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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.This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 1 November 2019^[1] refusing leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.The applicant is a national of Pakistan of 28 years old.  He entered Hong Kong illegally on 10 June 2014.  He was arrested by the police on 24 June 2014 and raised the non-refoulement claim on 26 June 2014.  His claim was made on the basis that he will be harmed or killed by supporters of the Pakistan Muslim League (Noon) (“PMLN”) if he returns to Pakistan because he is a supporter of Pakistan Tehreek-e-Insaf, one of the major political parties in Pakistan.

The Director’s decision

3.By a Notice of Decision dated 31 October 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5].

4.The Director assessed the fact that the applicant had remained safe in Okara, which is more than seven hours by bus from his home, is indicative that his perceived risk of harm from the supporters of PMLN is not well-founded and his fear of being harmed or killed is too far-fetched.  The Director did not accept that the perceived ill-treatment from the PMLN supporters is as imminent, foreseeable and substantial as asserted.  The Director also observed that the feared ill-treatment does not fall within the ambit of “persecution” and no severe pain or suffering within the definition of torture under section 37U(1) of the Immigration Ordinance (Cap 115) had ever been inflicted upon the applicant in the past.  The Director considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  

The Board’s decision

5.The applicant attended the hearing of the appeal against the Director’s decision on 8 October 2018.  The Board found that the evidence of the applicant is wholly unreliable and his claims regarding the threats and assaults by the PMLN have been fabricated.  The Board held that the applicant has failed to establish he would face a real risk of being harmed upon his return to Pakistan.  Therefore, the Board rejected the appeal on 12 November 2018. 

The intended judicial review

6.The applicant filed a Form 86 and an affirmation on 21 December 2018 to seek leave to apply for judicial review against the decision of the Board.

The judge’s decision

7.The Judge heard the leave application on 24 May 2019.  The applicant confirmed before the judge he had a fair interview with the immigration officer and a fair hearing before the adjudicator, and that he understood the Director’s decision as his lawyer had explained it to him. The judge held that the applicant’s ground on procedural unfairness is inconsistent with what he said in court and the other grounds are without any evidence in support.  The judge considered that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 1 November 2019.

The grounds of appeal

8.The applicant filed a Notice of Appeal against the decision of the judge on 8 November 2019.  He stated in his Notice of Appeal that his life is in danger in his home country so he cannot go back^[6].

Non-compliance of unless order

9.The hearing of the appeal scheduled on 10 March 2020 was adjourned to 26 May 2020 due to the general adjournment of the court proceedings for public health reasons.  A notice of hearing of the new hearing date was sent to the applicant by registered post but was unclaimed and returned to the court.

10.Directions were given by the Registrar of Civil Appeals on 28 November 2019 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.  When the appeal was adjourned to 26 May 2020, the deadline for the applicant to comply with the Registrar’s directions to lodge a skeleton argument was extended to 8 May 2020 by Kwan VP on 17 April 2020.

11.The applicant failed to lodge a skeleton argument on or before 8 May 2020.  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 15 May 2020, the court informed the applicant that the hearing date of 26 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

12.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.

13.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. 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.

14.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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review. 

Analysis and disposition

15.The applicant’s ground of appeal does not constitute a viable ground to reverse the judge’s decision.  He has failed to show that the judge made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

16.We dismiss the appeal as there is no merit in the appeal and no prospect of success in the intended application for judicial review. 

The Applicant (Appellant), acting in person