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

CACV 281 /2019

[2019] HKCA 1168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 281 OF 2019

(ON APPEAL FROM HCAL NO 1673 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 Woodcock on 17 June 2019. By that decision, the judge refused to grant leave to apply for 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 on 6 August 2015 and was arrested the following day. He lodged a non-refoulement claim on 11 August 2015 on the basis that if he were to return to Pakistan, he would be harmed or killed by members of the Pakistan Muslim League N (“PMLN”).

The Director’s Decision

3.  By a Notice of Decision dated 23 October 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].  

4.  The Director considered that the level of risk of harm from the members of PMLN is low and assessed that the ill-treatment, whether physical or mental, inflicted by them upon the applicant has not attained a minimum level of severity. Besides, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. There is also no evidence to show that people of PMLN were acting in any official capacity, or acting on behalf of the state or that they were imbued with state authority or there had been any public officials involved in the ill-treatment that the applicant suffered. Thus, the non-refoulement application was rejected by the Director. 

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 17 May 2018 but the applicant was not willing to answer questions asked of him. The Board found that the applicant had fabricated his claims because of his refusal and reluctance to answer questions as well as the significant inconsistencies in his evidence.  The Board held that the applicant failed to show that there is a real risk of any harm should he return to Pakistan. Therefore, the appeal was rejected on 9 August 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 20 August 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 was not satisfied with the Board’s decision because he cannot go back to his country at this moment.

The judge’s decision

7.  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 decision of the Board. Therefore, the leave application was refused on 17 June 2019. 

The grounds of appeal

8.  The applicant filed a Notice of Appeal against the decision of the judge on 25 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 and the decision ignored the facts which are related to his case.

9.  In his skeleton submissions, the applicant further submitted that:

(1) He cannot do anything to his enemies because they have lots of power. They can trace him anywhere “in India”. 

(2) Due to the corrupt system, common people are helpless and only strong people can survive. The police and other law making authorities also give favour to strong people.

(3) He may be tortured or killed if he goes back to his country.

(4) The decision is unfair and away from the reality.

10.  The above grounds of appeal were not raised in his original leave application, in which he barely asserted that he was not satisfied with the Board’s decision without stating any grounds.

Legal Principles

11.  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.

12.  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.

13.  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.

14.  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.

15.  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

16.  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.

17.  In any event, the applicant’s grounds of appeal are just bare assertions without evidence in support. He stated in his submission his enemies can trace him anywhere in India while he is from Pakistan. 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.

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

19.  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 being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.

[3] 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.

[4] 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.

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