Re Khan Niaz Ali

CACV 133/2024, [2024] HKCA 721

On Appeal From [2024] HKCFI 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 133 OF 2024

(ON APPEAL FROM HCAL NO 1453 OF 2019)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon Au JA (giving the Judgment of the Court):

1.This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 26 March 2024 ([2024] HKCFI 913) (“the Leave Decision”) refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 3 May 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 June 2018.

2.On 9 April 2024, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.The applicant is a national of Pakistan.  He last entered Hong Kong as visitor on 30 November 2006 and has overstayed since 15 December 2006.  On 16 April 2007, he was arrested by the police for overstaying.  He then made a torture claim on 25 April 2007, which was rejected on 25 July 2013 and his subsequent appeal was also rejected.  By a written signification dated 2 August 2013, the applicant made a non‑refoulement claim on the basis that, if refouled, he would be harmed or even killed by a group of Shiya Muslim who did not like him and his family.  Details of the applicant’s claim were summarised by the Judge at [4] ‑ [8] of the Leave Decision.

4.By a Notice of Decision dated 26 June 2018 (“the Director’s Decision”), the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds other than torture risk[1], namely BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.The applicant appealed the Director’s Decision to the Board.  By the decision dated 3 May 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [11] ‑ [13] of the Leave Decision:

“11. The applicant appealed the Director’s Decision to the Board. On 18 October 2018, the Board conducted an oral hearing with an interpreter.

12. Having considered the applicant’s evidence, the Board was convinced that the account of events given was credible. However, the Board failed to see that the applicant faced a genuine and substantial risk in Pakistan given the past action of the Shiya group [23]-[27]. In any event, state protection and internal relocation were also available to the applicant [28]-[33].

13. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk or Persecution risk [9]-[16], [34]-[36]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.”

THE JUDGE’S DECISION

6.On 28 May 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of review was advanced in his Form 86 and in his supporting affirmation.  He said his life was threatened by the opposition, that he was beaten badly and his life was in danger.

7.As the applicant did not request for an oral hearing, the Judge considered his application on papers.  On 26 March 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“16. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18. 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.’

19. Having considered the evidence, the Board had given its reasons to support its view that the applicant is not facing any genuine and substantial risk:

‘24. The low intensity and frequency of past ill-treatment suggest that future risk of the Petitioner being physically harmed is low. In all the shooting incidents, the Petitioner was not the target and he was not injured. It could be inferred that the Petitioner was never a target of the Shiya group.

25. When the Petitioner’s house was set on fire, the Petitioner’s family was not in the house. … the Shiya group chose to damage the house only when the Petitioner’s family has left. It indicates that the Shiya group only wanted to send warning to the Petitioner rather than physically harming the Petitioner.

26. Also, there is no evidence indicated that the Shiya group was acting in any official capacity. The Petitioner’s conflict with the Shiya group was private one. There is no reason that the government would involve in it.

27. For the reasons stated above, it is my considered view that there is not a genuine and substantial risk that the Petitioner would be harmed or killed by the Shiya group.’

20. The applicant has not given any valid reason to challenge the Board’s finding of the facts above. There is no reason that the court should interfere with the Board’s Decision. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

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

THIS APPEAL

8.In his Notice of Appeal filed on 9 April 2024, he only stated:

“THE HIGH COURT DID NOT CONSIDER MY JR. ADJUDICATOR DID NOT GIVE ME CORRECT DECISION. HIS DECISION IS FULL OF WRONG. PLEASE GRANT MY LEAVE.” (sic)

9.Contrary to the directions of the Registrar of Civil Appeals dated 9 April 2024, the applicant did not lodge any written submissions.

DISCUSSION

10.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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)]).

11.Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.In our view, the applicant’s case is a non-starter. The applicant fails to identify or show with specific particulars any error in the Leave Decision, or raise any viable ground of appeal against the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. His allegations are general and vague without any specific particulars in support.  None of his allegations are proper grounds of appeal.  His appeal must fail on this basis alone.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

13.The applicant’s appeal against the Leave Decision has no merit and is dismissed.

The applicant acting in person