Shahzad Khurram v. Torture Claims Appeal Board

CACV 24/2023, [2023] HKCA 595

On Appeal from [2023] HKCFI 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 24 OF 2023

(ON APPEAL FROM HCAL NO 881 OF 2019)

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BETWEEN

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Before: Hon G Lam JA and Lisa Wong J in Court

Date of Judgment: 12 May 2023

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 19 January 2023 refusing the applicant leave to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 25 March 2019, which dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 29 December 2017 rejecting his non-refoulement claim.

Background

2.The applicant is a national of Pakistan, born in 1985.  He claims to have entered Hong Kong illegally on 22 December 2015, and was arrested by the police the next day.  He was referred to the Castle Peak Bay Immigration Centre, and on 25 December 2015 he raised a non-refoulement claim.  His claim was based on the fear that if he returned to Pakistan, he would be harmed or even killed by members of the political party, Pakistan Muslim League (Nawaz) (“PMLN”), because he had refused to try to persuade a friend not to oppose a member of PMLN in a Provincial Assembly election.  The details of his claim are set out in paragraphs 25 to 36 of the Board’s decision.

3.The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] and torture risk,[3] and BOR 2 risk.[4]  By notice of decision dated 29 December 2017, the Director rejected the applicant’s claim.

4.The applicant appealed to the Board.  The Board held a hearing on 12 November 2018 at which the applicant gave evidence. In a written decision dated 25 March 2019, the Board stated it did not find the applicant to be a credible witness having regard to the discrepancies, inconsistencies and contradictions in his evidence, which the Board explained in detail.  It did not accept the applicant’s evidence of the incidents in which he was allegedly assaulted.  The Board found that, even if those incidents were accepted, there was still no relevant risk of harm of the requisite level of severity under the four heads of risk mentioned above.  In addition, the Board found that even if the applicant faced a real risk of harm from the alleged enemies, it was confined to the local area where he lived, and that he could safely relocate within Pakistan, such as to Lahore or Karachi. Accordingly, the Board dismissed the applicant’s appeal.

The Judge’s decision

5.On 1 April 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not set out any ground for judicial review in the Form 86, and all he stated in the accompanying affirmation was that the Immigration Department disregarded his dangerous situation. 

6.On the basis of consideration of the papers alone, the Judge gave his decision in writing on 19 January 2023, dismissing the application for leave to apply for judicial review.  His reasons are stated in [10] to [15] of the Form CALL-1 as follows:

“ 10.  On 1 April 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that he rejects the decision because it disregarded his dangerous situation but without providing any details or elaboration as to how it did so, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 44 - 46 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as from reliable and relevant COI which did not support or corroborate his claimed risk, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk in the Applicant’s claim if real is a localized one and that 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 and 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.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The appeal to this Court

7.By notice of appeal filed on 1 February 2023, the applicant appeals against the Judge’s decision.  The grounds stated are:

“ the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

8.In her directions dated 22 February 2023, the Registrar of Civil Appeals informed the applicant that he was required to lodge a written skeleton argument for the appeal and that if he failed to do so, he would be deemed to have elected to have his appeal disposed of on paper and the hearing date would be vacated.  The applicant did not lodge any skeleton argument, as a result of which the hearing originally fixed for 18 April 2023 was vacated.  We now proceed to determine the appeal on the basis of the documents available.

Discussion

9.In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal.  The court will not intervene by way of judicial review unless there is an error of law, procedural unfairness or irrationality in the decision of the Board or the Director.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicant.  If no viable ground is put forward for reversing the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board or the Director afresh as if the appeal were a fresh application for judicial review.

10.In the present case, the Board dismissed the applicant’s appeal having rejected the applicant’s evidence due to credibility issues.  In any event it found that internal relocation was an option open to the applicant even if the risk of harm he alleged actually existed.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The applicant had in our view wholly failed to identify any public law defect that vitiated the Board’s decision.  Nor could the Judge see any reasonably arguable basis for challenging the Board’s decision.

11.The allegation in the notice of appeal that the Board relied on matters that were “not officially recognized”, “simply hearsay”, or “outdated considering the dramatic changes”, is a bare assertion, and was not put forward below in the application for leave to apply for judicial review.  The allegation is also inapt having regard to the nature and content of the Board’s decision. 

12.The applicant has also been wholly unable to point concretely to any error in the decision of the Judge.  No viable ground of appeal has been put forward.

13.The applicant’s appeal is accordingly dismissed.

The Applicant, unrepresented, acting in person