Khan Razaq v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 347/2021

[2021] HKCA 1599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 347 OF 2021

(ON APPEAL FROM HCAL NO 2730 OF 2018)

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Before: Hon Chow JA and S T Poon J in Court

Date of Written Submissions:  30 August 2021

Date of Hearing:  25 October 2021

Date of Judgment: 1 November 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is an appeal against the order made by Deputy High Court Judge K.W. Lung (“the Judge”) on 30 June 2021 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 27 November 2018. The Board dismissed the Applicant’s appeal against the first and second decisions of the Director of Immigration (“the Director”) dated 13 March 2015 and 31 May 2017 rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Pakistan.  He was arrested by the police on 27 June 2012 for illegal remaining in Hong Kong.  He lodged a non-refoulement claim on 30 June 2012.

3.The Applicant claims that, if refouled to Pakistan, he would be harmed by a man named Haji Khursaid and his people. The Applicant claimed that he had borrowed money from Haji but failed to repay the debt.  Haji and his people went to the Applicant’s parents’ home where there was a gunfight between Haji and the Applicant’s family members.  This caused the death of the Applicant’s paternal aunt and injury to others.  Haji had also lost his hand in the gunfight and hated the Applicant.  From 1996 to 2012, Haji made death threats to the Applicant.  Details of the Applicant’s claim have been summarised by the Judge at §5 of the CALL-1 Form^[1].

4.By a Notice of Decision dated 13 March 2015 and Notice of Further Decision dated 31 May 2017, the Director rejected the Applicant’s non-refoulement claims on all applicable grounds: risk of torture,^[2] BOR 2 risk, BOR 3 risk^[3], and persecution risk^[4] (altogether, “the Director’s Decisions”).

5.The Applicant appealed the Director’s Decisions to the Board.  On 9 August 2018, the Board heard the appeal.

6.On 27 November 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decisions (“the Board’s Decision”).  The Board found that the Applicant’s claims for seeking non-refoulement had been consistent on general terms but there were aspects that were inconsistent.  The Board doubted the Applicant’s credibility regarding his accounts of events.  The Board concluded that the Applicant failed to establish torture risk, BOR 2 risk, BOR 3 risk, and persecution risk. 

THE DEPUTY JUDGE’S DECISION

7.On 3 December 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review against the Board’s Decision. 

8.The Applicant complained that the Board disregarded his dangerous situation.  Citing Re: Kartini [2019] HKCA 1022, 9 September 2019, the Judge held that 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.

9.The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  The Judge did not find any error of law or procedural unfairness in the Board’s Decision, and no evidence showing any prospect of success in the Applicant’s intended application for judicial review.

10.Accordingly, on 30 June 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.

THIS APPEAL

11.In his Notice of Appeal, the Applicant requested that the Board’s Decision be reviewed again because the Board disregarded his dangerous situation.

12.In his written submissions, the Applicant alleged that the Judge failed to provide reasons although he does not identify any error in the Judge’s decision or reasoning.

13.At the appeal hearing, the Applicant indicated that he has nothing to add.

DISCUSSION

14.The Court will not intervene by way of judicial review unless it is shown that there are errors of law, or procedural unfairness, or irrationality in the decision of the Board.  The assessment of evidence, risk of harm, state protection, and the viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1)).

15.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.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

16.The Court of Appeal would only reverse that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court, or was otherwise plainly wrong (see Re Iqbal Parvaiz [2020] HKCA 76 at §7.1).

17.The Applicant has not identified any errors of law, a failure by the Judge to take into account relevant matters already placed before the Court, or shown that the Judge’s decision was otherwise plainly wrong.

18.For the reasons above, the Applicant has not shown any errors in the Judge’s decision or viable grounds of appeal.

19.We agree with the Judge that the Applicant’s intended judicial review is not reasonably arguable and has no prospect of success.  Leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.

The Applicant, unrepresented, appeared in person.

[1] [2021] HKCFI 1661.

[2]This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]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.