UMAR SHAHZAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 276 /2019

[2019] HKCA 1167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 276 OF 2019

(ON APPEAL FROM HCAL NO 129 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 13 June 2019. By that decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Pakistan who entered Hong Kong illegally in April 2012 and was arrested by police on 27 June 2012. After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he were to return to Pakistan, he would be harmed or killed by a group of supporters of the rival political party Pakistan Muslim League N (“PMLN”). His torture claim was later taken as a non-refoulement claim under the Unified Screening Mechanism.  

The Director’s Decision and Further Decision

3.  By a Notice of Decision dated 27 October 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim. The decision covered torture risk[1], BOR 3 risk[2] and persecution risk[3].  

4.  The Director considered that the level of risk of harm from the members of PMLN is low. Apart from the verbal threats, no physical harm was inflicted upon the applicant when he was in Pakistan. Besides, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. Thus, the non-refoulement application was rejected by the Director. 

5.  By a Notice of Further Decision dated 20 March 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[4].

The Board’s decision

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 3 April 2017. The Board held that the applicant failed to show that there is a genuine and substantial risk of being subjected to ill-treatment should he return to Pakistan, no government officials were involved, state protection would have been available and internal relocation is viable. Therefore, the appeal was rejected on 18 January 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 29 January 2018 to seek leave to apply for judicial review against the decision of the Board. He did not put forward any grounds in his Form 86 but only stated in his supporting affirmation that he cannot go back to his country because danger is still there.

The judge’s decision

8.  The Judge decided that the applicant’s intended judicial review application does not have any prospect of success as there is no error of law or procedural unfairness in the decisions of both the Director and the Board.  Therefore, the leave application was refused on 13 June 2019. 

The grounds of appeal

9.  The applicant filed a Notice of Appeal against the decision of the judge on 24 June 2019. He stated in his notice of appeal that he is not satisfied with the Board’s decision as it will lead his life towards more danger.

10.  In his skeleton submissions, the applicant submitted that the Board’s decision is unfair as it ignored the facts which are related to his case. He further submitted that the system is corrupted, the police and other law making authorities also give favour to strong people. He does not have enough resources to protect himself from his enemies. 

11.  Apart from the assertion related to the danger he faces, the above grounds of appeal were not raised in his original leave application.

Legal Principles

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information (“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.

14.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

16.  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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

17.  An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below[5].  The Court of Appeal will not entertain the applicant’s grounds which have not been canvassed at the court below and for which leave has not been sought within time by the applicant.

18.  In any event, the applicant’s grounds of appeal are just bare assertions without evidence in support. He also failed to put forward any viable arguments to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  For the above reasons, none of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge. 

20.  There is no merit in the appeal and no prospect of success in the intended application for judicial review. We therefore dismiss this appeal.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[3] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.

[5] Re Qadir Sher [2018] HKCA 160 at §11