Re Khan Babar

CACV 513/2021

[2022] HKCA 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 513 OF 2021

(ON APPEAL FROM HCAL 266 OF 2019)

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Before: Hon Chow JA and Lisa Wong J in Court

Date of hearing: 15 February 2022

Date of judgment: 2 March 2022

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JUDGMENT

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

The appeal

1.This is an appeal against the order made by Deputy High Court Judge Suffiad (“Judge”) on 11 November 2021 (“Judge’s Decision”), refusing the applicant leave to apply for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 16 January 2019(“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“Claim”) by a notice of decision dated 11 September 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.The basis of the Claim made by the applicant, a national of Pakistan, is a fear of being harmed or even killed by the Taliban.

3.The circumstances giving rise to such alleged fear have been set out in paragraph 7 of the Director’s Decision, paragraphs 10 to 26 of the Board’s Decision and [9] to [15] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 3281 (“Form CALL-1”).

4.Briefly:

(1)  In September/October 2014, the applicant’s father received a number of phone calls from person(s) claiming to be members of the Taliban.

(2)  The caller(s) demanded the applicant’s father to meet them at the border of Pakistan and Afghanistan at an appointed time and place and to pay them 2.5 million PKR, failing which they would send the applicant and his brother to join the “holy war”.  The applicant’s father refused to give in to such demand.

(3)  About 1 to 2 months later, some minor injuries were inflicted upon the applicant in an assault by 3 strangers whom he suspects to be from the Taliban and were sent to attack him because his father did not succumb to their demand.

(4)  After this incident, their father, believing that the Taliban had infiltrated Pakistan, sent the applicant and his brother to different parts of the world.

(5)  The applicant left Pakistan on 21 March 2015.  Before that, he had hidden with different friends in his home city, each for a short time.  Nothing untoward happened to the applicant during that period.

(6)  The applicant’s father has since advised him not to return as “the situation is still not stable”.

Illegal entry into Hong Kong and lodgment of NRF Claim

5.The applicant entered Hong Kong illegally from Mainland China on 30 March 2015.  He was arrested by the police on the same day.  He raised the Claim by written representation dated 2 April 2015.

Director’s Decision

6.After considering the information provided by the applicant in his Non-refoulement Claim Form dated 10 August 2017 and at the screening interview on 30 August 2017, at which times the applicant was represented by the Duty Lawyer Service, the Director found the Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4]. 

7.In short, the Director assessed the risk of harm faced by the applicant from the Taliban to be low and further found that reasonable state protection and viable internal relocation options would be available to the applicant to negate or lower any perceived risk.

Appeal to Board and Board’s Decision

8.The applicant appealed to the Board.  After a rehearing on 19 October 2018, at which the applicant testified and answered the Board’s questions through an interpreter, the Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection. 

9.In summary,the Board did not find the applicant credible, noting that significant aspects of his evidence were either general assertions without any coherent particulars or were inconsistent or incredible.  The Board was not satisfied that the applicant would face a real chance of harm in Pakistan for the claimed reason.

Application for leave for judicial review and Judge’s Decision

10.By a notice of application for leave to apply for judicial review (“Form 86”) issued under HCAL 266/2019 on 28 January 2019, the applicant sought leave to apply for judicial review of the Board’s Decision, without stating any ground for the proposed judicial review.  In the supporting affirmation filed on the same date, the applicant said that he was not satisfied with the decisions on the Claim made under the unified screening mechanism; that he was unable to submit “the document during my interview”; and that his life would still be in danger in Pakistan.

11.The applicant did not ask for an oral hearing.  After considering the material available to him,  the Judge refused leave for the reasons in [29] to [32] of the Form CALL-1:

“29. The findings of fact by the Board on the facts of the case are primarily matters well within the province of the Board.

30. The present complaint raised by the Applicant in his Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board. The fact that the Applicant still claims that he is at risk of being harmed or killed if returned to Pakistan is neither here nor there.

31. Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered all four available grounds on which this non-refoulement claim is brought and has dealt with the merits of each limb separately and individually.

32. The decision reached by the Board cannot be said to be unreasonable in any way. Nor can the court see any error of law, procedural unfairness or irrationality in the decision of the Board. There is no reasonably arguable basis to challenge the findings of the Board.”

Appeal to Court of Appeal - grounds of appeal and submission

12.By the notice of appeal filed herein on 18 November 2021, the applicant appealed against the Judge’s Decision, with grounds to be supplied on an unspecified later date. 

13.His 2-page written submission dated 14 January 2021 (sic) simply reiterated the allegations underlying the Claim.

14.The applicant appeared in person at the hearing on 15 February 2022.  He had nothing useful to add to his notice of appeal and written submission.  In particular, we are not sympathetic towards the request for more time to gather sufficient evidence.  The applicant did not disclose what further evidence he could gather or explain why he could not adduce the same in the time since April 2015 when he raised the Claim.

Discussion

15.The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

16.The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  That being the case, the proposed application for judicial review was doomed to fail and leave was rightly refused.

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 decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at at [14(2)] and [4(4)].

18.The applicant has not identified 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 plainly wrong.  We cannot discern any either.

19.In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are both in order.

Disposition

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

The applicant, unrepresented, acted in person

[1]  This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[2]  This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[3]  This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]  This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.