AHMAD IJAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 359/2020

[2021] HKCA 174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 359 OF 2020

(ON APPEAL FROM HCAL NO 1737 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 31 July 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 3 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 15 August 2017 rejecting the applicant’s non-refoulement claim.

2.  On 12 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Pakistani national.  He last arrived in Hong Kong on 17 June 2013 when he entered illegally from Shenzhen. He was arrested by the police and referred to the Immigration Department. He lodged his current non-refoulement claim on 19 June 2013. 

4.  The applicant’s claim was based on the fear that, if he (a follower of PTI, though previously a follower of PMLN) returned to Pakistan, he would be harmed or even killed by a gangster named Mr B and his gang members and the PMLN to which Mr B now belonged (having previously been a member of the PPP). The factual background was succinctly summarized by the Judge in [4] – [6] of the Form CALL-1 ([2020] HKCFI 1756).

5.  By notice of decision dated 15 August 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 7 May 2018, during which the applicant was interviewed by the Board.  The Board found that the applicant was not a credible witness, rejected the key facts in support of his claim, and found that there was no real risk of harm.  Thus the Board dismissed the applicant’s appeal on 3 August 2018 on all the applicable grounds.

Decision of the court below

7.  On 24 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his affirmation in support of his Form 86, the only ground he raised was that his life will be in danger if he were to return to his country as his problems were not finished.

8.  Upon consideration of documents only, on 31 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [18] of the Form CALL-1 ([2020] HKCFI 1756, HCAL 1737/2018) as follows:

“14. It is obvious that the Board had rejected all the facts in support of his application. As such, he has no factual basis for his claim.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

16. The grounds that he has raised in support of this application are inconsistent with the Board’s finding.

17. There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

18. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to this Court

9.  On 12 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision. His grounds of appeal were that the decision departed from the facts and reality in his case, and that there is no transparency in the decision.

10.  On the same day that he filed his Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

11.  Pursuant to this Court’s directions of 17 December 2020, the applicant lodged his written submissions on 28 December 2020.  The applicant submitted that his life would still be in danger if he were to return to his country, that matters related to his case were ignored, and that conditions in his country are much different than what is thought.

12.  To paraphrase, the applicant further submitted that he cannot protect himself from his enemies and neither can the police, due to his enemies’ manpower and strong political support, and that death and torture in custody are common in his country, along with corruption and impunity.

13.  However, in those submissions the applicant did not provide any details or particulars in support of the above arguments.  Nor did he have anything to add when he appeared before this court.

Legal principles

14.  In assessing the merit of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(1)  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 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.

(2)  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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

15.  The applicant did not in his Notice of Appeal or submissions provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision or any other specific grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.  He did not have anything to add when he appeared before this court.

16.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding on the applicant’s credibility, and rejected the key facts in support of his claim.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

18.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge was plainly right to refuse leave. 

Order

19.  For the above reasons, this appeal is dismissed.