Re Faiz Khan

CACV 303/2022

[2022] HKCA 1849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 303 OF 2022

(ON APPEAL FROM HCAL NO 658 OF 2019)

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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 25 July 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2100).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 February 2018 rejecting the applicant’s non-refoulement claim.

3.We heard the appeal on 5 December 2022. After the hearing, we reserved our judgment to be handed down in writing. This is what we do now.

Background

4.The applicant is a national of Pakistan. He claimed to have entered Hong Kong illegally by boat on 6 May 2016. He was arrested by the police on 10 May 2016 and referred to the Immigration Department on 11 May 2016. By a written representation dated 12 May 2016, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his maternal uncle owing 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 a Notice of Decision dated 27 February 2018 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

6.The applicant then appealed against the Director’s Decision to the Board. The applicant attended the hearing on 27 November 2018 and an interpreter qualified in the Urdu and English languages was present to provide language assistance. Having assessed and considered the totality of the evidence, the Board was not satisfied that the applicant or any member of the applicant’s family had ever been targeted for harm or actually harmed in connection with a land dispute or for any other reason, by his maternal uncle or any of his networks. The Board did not accept that the appellant, if refouled, would face a risk of harm of any nature in connection with his claimed circumstances in the reasonably foreseeable future. The Board was also not satisfied that the applicant would face a real chance of harm of any kind in Pakistan. Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.On 8 March 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision. In his Form 86, the applicant did not state any ground of review. In his supporting affirmation, he only stated that the Immigration Department had disregarded his dangerous situation. As the applicant did not request for an oral hearing, the Deputy Judge considered and determined his application on paper.

8.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [12] ‑ [18] of the Leave Decision:

“12. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he had had a fair hearing before the Board and he had nothing to say.

14. 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.’

15. Those grounds in paragraph 11 above are not valid reasons to challenge the Board’s Decision.

16. 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.

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

CONCLUSION

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

The Appeal

9.On 8 August 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:

“THE HIGH COURT DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. I DO NOT AGREE WITH THE HIGH COURT. THE COURT COULD NOT SHOW ANY RESON FOR DISMISSE. I WILL SHOW SOME REASON TO GRANT MY LEAVE.” (sic)

10.Pursuant to the directions made by the Registrar of Civil Appeals on 21 September 2022, the applicant lodged his written submissions on 3 November 2022. In those submissions, he repeated the factual basis and procedural history of his non-refoulement claim and stated that his enemies were very powerful and could kill him any time. He further asserted that as he had submitted all original documents and a real story, his risk was genuine and that no one could say his claim was fake. He further claimed that all the decisions in respect of his case were wrong and that he did not get justice from the High Court. He then urged the Court of Appeal to save his life and grant him leave to apply for judicial review.

11.We heard the appeal on 5 December 2022. An Urdu interpreter was present to provide language assistance. During the hearing, the applicant confirmed he had nothing to add to his written materials.

Discussion

12.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].

13.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.

14.At the outset, all of the applicant’s allegations are vague, bare contentions unsupported by any specific particulars or evidence. Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, his submissions are plainly not proper grounds of appeal.

15.Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28]. More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin Information 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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11]. Accordingly, we see no basis to interfere with the Leave Decision.

16.For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.

The applicant appeared in person