Re Ayub Gohar

CACV 318/2022, [2024] HKCA 139

On Appeal From [2022] HKCFI 2338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 318 OF 2022

(ON APPEAL FROM HCAL NO 1034 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 To (“the Deputy Judge”) set out in the Form CALL-1 dated 3 August 2022, by which the Deputy Judge refused the applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2338).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 October 2018 rejecting the applicant’s non-refoulement claim.

3.On 15 August 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we have proceeded to consider this appeal on paper based on the available materials.

Background

4.The applicant is a national of Pakistan.  He last entered Hong Kong illegally on 3 May 2016 and surrendered to the authorities on 18 May 2016.  By a written representation dated 29 September 2016, the applicant raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by a gangster called Bashir. The applicant said his uncle stopped paying protection money to Bashir, and his uncle’s son Mushtaq was later killed by Bashir.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [6] ‑ [13] of the Leave Decision.

5.By the Director’s Decision, the Director dismissed his non‑refoulement claim on all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].  The applicant then appealed against the Director’s Decision to the Board on 9 November 2018.

6.On 11 February 2019, the applicant wrote to the Board stating:

“I AYUB GOHAR withdraw my appeal/petition the reason is my withdraw is my problem is solved now and now I have no problem in my Country.

I understand that by withdrawing with my appeal/petition 1^st decision which I had appealed and petitioned against will remain in force. I understand this is a final disposal of my appeal and position before the Torture Claims appeal Board and Non-refoulement Claims Petition office.” (sic)

7.On 14 February 2019, by the Board’s Decision, the Board wrote to the applicant:

“… The Board has considered your application to withdraw your appeal/petition having regard to all the available information placed before it. After consideration, the Board is satisfied that your application to withdraw the appeal/petition was freely sought, and that you understood the consequences of the withdrawal. The Board is also satisfied that there is good reason for your proposed withdrawal of the appeal/petition, namely, that you are safe to return to your home country. Under the circumstances, the Board has given direction that your appeal/petition is withdrawn. The Board has also directed that the Immigration Officer’s decision of 30 October 2018 is confirmed.

Please note that your appeal/petition has now been disposed of and finally determined by the Board. No further action will be taken by the Board in respect of your appeal/petition.”.

The Leave Decision

8.On 16 April 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the “decision given by appeal board and Director of Immigration on 4 April 2019”.  However, no such decision was given by the Board or the Director on 4 April 2019 and his application was thus taken by the Deputy Judge to be against the Board’s Decision.  In this respect, no ground was given in his Form 86 and in his supporting affirmation, the applicant only stated that he was not satisfied with the decision because he still had problems in his home country.  On 23 June 2022, the applicant attended an oral hearing before the Deputy Judge in respect of his leave application and was assisted by an Urdu interpreter.

9.By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review.  His reasons were set out in detail at [23] ‑ [25] of the Leave Decision:

“23.  In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagreed with the finding of fact by the Board that his application to withdraw the appeal was freely sought and he understood the consequences of the withdrawal.  In effect, he is seeking to challenge the Board’s finding of the above facts.  

24.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly applied the legal principles and procedures relating to the Applicant’s withdrawal of his appeal and observed a very high standard of fairness.  The finding that the withdrawal was freely sought was the Board’s inference drawn from the surrounding circumstances including, in particular, the Applicant’s letter dated 11 February 2019.  Its finding that the Applicant understood the consequences of the withdrawal was based on the Applicant’s own assertion in that letter, which is incontrovertible.  These are finding of facts solely within the province of the Board, which the Court on a judicial review will not interfere save when such findings involved error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s application for judicial review is not reasonably arguable.  His proposed judicial review has no realistic prospect of success.

Conclusion

25.  For the above reasons, leave to apply for judicial review was refused.”

The Appeal

10.On 15 August 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, he only stated:

“I am not satisfied with the Decision because its away form facts and reality which are related with my case. There is no way transparency in these decision. Please accept my application and allow me to process further my case.” (sic)

11.Pursuant to the directions of the Registrar of Civil Appeals dated 15 August 2022, the applicant lodged his written submissions on 22 August 2022.  In those submissions, he alleged that his life would still be under threat and that “many things related to his case” were ignored by the Board and the Director. However he gave no specification as to what those things were.  He further claimed that police and other law making authorities were using their political influence and he did not have much strength to fight them.  He also claimed that it was difficult to get justice owing to corruption and that his enemies were strong.

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.In our view, the applicant’s allegations had no substance.  At the outset, the Board dismissed the applicant’s appeal on the basis of his own request for withdrawal of his appeal.  As shown in his letter dated 11 February 2019, the applicant plainly made this request by his own free choice and confirmed that his problem in his home country was solved and that he was safe for him to return and that he understood the consequence of his actions.  Accordingly, his challenge against the Board’s Decision plainly lacked proper foundation and the applicant’s intended judicial review must be dismissed on this basis alone.

15.More importantly, the applicant failed to point to any error of the Leave Decision with specific particulars or evidence in support.  His complaints are all general and vague without specific particulars or evidence in support.  They therefore do not constitute proper grounds of appeal.  See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  General assertions of his fear if refouled did not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. This appeal must fail on this alone.

16.It is also trite that assessment of evidence, Country of Origin materials 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In our view, there is plainly none in this case.

17.For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.

The applicant acting in person