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Re Akhtar Kamran

Judgment Cited authorities 17 Cited in 1 Precedent Map Related
Vincent
Judgment Date28 September 2018
Neutral Citation[2018] HKCA 645
Judgement NumberCACV157/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV157/2018 RE AKHTAR KAMRAN

CACV 157/2018

[2018] HKCA 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 157 OF 2018

(ON APPEAL FROM HCAL 322/2017)

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RE: AKHTAR KAMRAN Applicant

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Before: Hon Chu JA and Barma JA in Court

Date of Judgment: 28 September 2018

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J U D G M E N T

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

1. This is an appeal against the decision of Chung J given on 2 May 2018 refusing 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 dated 17 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 16 April 2015 and 10 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2. The applicant is a national of Pakistan. He attempted to enter Hong Kong on 2 February 2015 via Shenzhen. He was denied entry, and raised a non-refoulement claim on the same day.

3. According to the applicant, he was an active supporter of Pakistan Muslim League (Quaid-e-Azam Group) (“PML(Q)”). In early October 2014, a man identified as Chaudhary asked the applicant to join the Pakistan Muslim League-Nawaz (“PML(N)”). When the applicant refused, Chaudhary and his men attacked the applicant on several occasions. He decided to flee to Hong Kong.

4. By a Notice of Decision dated 16 April 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5. By a Notice of Further Decision dated 10 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 24 October 2016, at which it considered the Director’s First Decision. Subsequent to the hearing, the Board also considered the applicant’s claim on BOR 2 risk ground on paper. The Board dismissed the appeal on 17 May 2017 (“Board’s Decision”).

7. At [24] and [25] of the Board’s Decision, the Board found that the injury suffered by the applicant did not amount to the level of severity within the meaning of “torture”. At [32] and [33] the Board held that there was no evidence that the assailants were state actors. The Board was also not satisfied at [57] that the applicant has shown state protection was not available to him. At [62] the Board held that, in the light of its conclusions on the other points, it was not necessary to consider internal relocation.

The judge’s decision

8. The applicant filed a Form 86 on 23 June 2017. The Form 86 contained no ground for seeking relief.

9. In the affirmation in support of the leave application dated 23 June 2017, the applicant advanced the following grounds for judicial review:

(1) the Board failed to carry out sufficient research and inquiry into the country of origin conditions;

(2) the Board failed to sufficiently take into account, or place proper weight, on relevant country of origin information which was mentioned in the Board’s decision;

(3) the Board failed to evaluate, or make a fact finding regarding the existence of torture and death threats against the applicant;

(4) the Board misdirected itself on the law in failing to consider or assess whether state protection exists;

(5) the interpreter misinterpreted and did not explain the meaning of further and additional information regarding BOR 2 assessment. The applicant did not receive the Director’s letter inviting additional facts and grounds relating to BOR 2 assessment;

(6) the Board approached the country of origin information selectively and it failed to address the negative aspects of such information; and

(7) because the attackers were members of a very strong political party which has killed many people, it is impossible for the applicant to be safe even if he had relocated. The Board ought to consider the applicant’s attackers as part of “government officials”.

10. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave to apply for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [21] of the CALL-1 form:

“10. In coming to the above conclusions, so far as the relevant principles are concerned, the board’s decision has:

(1) set out, or referred to, the relevant statutory provisions and conventions;

(2) relied on some of the relevant principles laid down in earlier decisions;

(3) given reasons for its assessment of the credibility of, or weight to be placed on, various parts of the applicant’s factual case.

11. In relation to the applicant’s contention summarized in para 6(1) to (3) and (6) above, the applicant has not particularized the manner in which allegedly the board has erred (save for making the general complaints summarized above) (such as what would constitute ‘sufficient’ and/or ‘balanced’ independent inquiries, or how the inquiries would affect the outcome of the applicant’s claim).

12. In this connection, I note that, as has been pointed out by the court of appeal in TK v Michael C Jenkins [2013] 1 HKC 526 (at para 19 to 27 thereof), a balanced view has to be taken as regards the notion of ‘procedural fairness’ in this regard (and the applicant cannot ‘simply sit back’ and merely asserts that more should have been done).

13. Further to the above is the fact that, even though the applicant has been afforded a hearing (so that his case could also be presented verbally), for his own reason he decided not to testify before the board.

14. With the above in mind, the board cannot properly be faulted for concluding against him as regards matters like the severity of the assaults, or the credibility (or reliability) of his alleged (perceived) substantial risk of persecution.

15. In relation to the allegation of the board having been ‘selective’ in approaching the country of origin information (para 6(6) above):

(a) it is within the board’s power, as a fact-finding tribunal, to decide whether to place more weight on some of the factual materials and less (or no) weight on other materials. This cannot properly be viewed as being selective (an obvious example of being selective is this: in order to support its conclusion, a tribunal arbitrarily removes from its deliberation unsatisfactory part(s) of a single matter said to be supportive of its conclusion). Here the board was faced with different aspects of the country of origin reports; some parts were favourable to the applicant’s claim while others were unfavourable. In such a case, the board is bound to undertake an evaluation;

(b) the board’s evaluation of the materials before it has not been shown to be unreasonable, or against the overall weight of the evidence.

16. In relation to the alleged misdirection on the law (para 6(4) above), the board’s decision:

(1) has correctly identified and summarized the relevant principles (para 7 and 10 (especially para...

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1 cases
  • Re Akhtar Kamran
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 18 January 2019
    ...(Carlye Chu) (Aarif Barma) (Jeremy Poon) Justice of Appeal Justice of Appeal Justice of Appeal The applicant acting in person [1] See [2018] HKCA 645 ...

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