RE HUSSAIN IMTIAZ

CACV 400/2019

[2020] HKCA 74

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 400 OF 2019

(ON APPEAL FROM HCAL NO. 689 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1.  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge Josiah Lam who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (‘the Director’) and Torture Claims Appeal Board (‘the Board’).

1.2  This appeal was scheduled to be heard on 21 January 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 26 September 2019, the applicant failed to lodge the skeleton argument by the stipulated time.  The applicant only lodged his skeleton submissions on 6 January 2020 which was lodged out of time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2.  Background

2.1  The applicant is a national of Pakistan.  He entered Hong Kong illegally by boat. He raised a non-refoulement claim on the basis that he would be killed by his grandfather’s cousin because of a land dispute.

2.2  The details of the applicant’s claim have been summarized by the Judge at [3] to [9] of the CALL‑1 Form.

3.  The Director’s Decision and Further Decision

3.1  The Director of Immigration decided against the applicant’s claim on 6 March 2015. The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution.

3.2  By a Notice of Further Decision dated 9 August 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant, and decided against the applicant.

4.  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 8 February 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 13 April 2018.

4.2  The Board found that the applicant’s evidence was unreliable.  He left Pakistan for China but he did not seek protection in China and instead tried to look for a job.  The Board did not find the applicant a genuine non‑refoulement protection seeker.  Even based on the applicant’s own case, his dispute with his adversary was only private in nature.

5.  Decision of the Judge

5.1  The applicant complained before the Judge that he had no legal and language assistance for his appeal.  He complained that the Board failed to consider country of origin information regarding state protection.  The applicant complained that the Board wrongly considered that he left Pakistan for economic reasons.

5.2  The Judge held that there was no right to legal representation at all stages of the proceedings.  Since the applicant told the Board that if he had found a job in China he would not come to Hong Kong, the Board was entitled to conclude that the applicant left Pakistan for economic reasons.

6.  Grounds of appeal

6.1  In summary, the applicant in his Notice of Appeal stated that the Judge did not consider his claim.  He stated that the Judge in the hearing told him not to talk about his problems in Pakistan, but his decision had mentioned many pages about his problem.  

6.2  The applicant in his written submissions complained that the Judge ‘totally follow the adjudicator direction’.

7.  Our view

7.1  We will repeat the approach of this Court in dealing with cases of this nature :

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 the 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 their decisions.

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.  In the determination for 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 otherwise plainly wrong.

3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2  In our view there are no merits in the applicant’s appeal.  The Judge in his decision was referring to the fact that the applicant had made an admission before the Board that the purpose of him leaving Pakistan was economic, not on the basis of torture or non-refoulement.  We are of the view that the Judge had carefully assessed the Board’s decision and rightfully refused leave for judicial review. The applicant has failed to show that the Judge’s decision was plainly wrong.

7.3  We see no error in the Judge’s decision. Accordingly the appeal is dismissed.