RE MUHAMMAD TANVEER

CACV 97/2022

[2022] HKCA 1529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 97 OF 2022

(ON APPEAL FROM HCAL NO. 2913 OF 2018)

____________________

____________________

____________________

J U D G M E N T

____________________

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

I.  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge P Li of 23 February 2022 refusing to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (‘the Director’) dated 17 October 2017 and of the Torture Claims Appeal Board (‘the Board’) dated 14 November 2018.  Pursuant to the directions of the Registrar of Civil Appeals on 28 February 2022 and on 16 March 2022, the applicant agreed to have the appeal disposed of on paper without an oral hearing and lodged his written submissions on 26 April 2022. 

II.  Factual background

2.  The applicant is a national of Pakistan.  He had previously entered Hong Kong in September 1997 and was arrested for overstaying in August 2000.  He was returned to Pakistan in October 2000. He alleged that he entered Hong Kong again illegally on 12 October 2013.  He was subsequently arrested by the police on 25 October 2013 and raised his non‑refoulement claim on 26 November 2013.  The basis of the applicant’s claim is that he would be harmed or killed by his uncle over a dispute involving a piece of inherited land from the applicant’s grandfather.

3.  The details of the applicant’s claim have been summarized by the Judge at [3] to [12] of the CALL‑1 Form.

III.  The Director’s Decision

4.  The Director decided against the applicant’s claim on 17 October 2017.  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’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

5.  The applicant appealed against the Director’s Decision to the Board.  After a hearing was held accordingly on 28 September 2018, the Board dismissed the applicant’s appeal against the Director’s Decision on 14 November 2018.

6.  The Board rejected the applicant’s versions of events entirely as it found them to be incredible and untruthful.  The Board did not accept that the applicant was in a land dispute with his uncle as alleged.  There was no coherent explanation why the applicant’s uncle suddenly demanded the disputed land some 30 years after his grandfather passed away, notwithstanding their families were living peacefully on the land all along. The applicant also failed to produce documents in support of his account, such as his wife allegedly was shot and killed by assailants sent from his uncle. In any event, the Board did not find there would be real risk of harm if the applicant is returned to Pakistan as there is no government involvement in his private dispute. 

V.   Decision of the Judge

7.  The applicant was legally represented when he filed a Form 86 with a supporting affirmation.  The former solicitors of the applicant raised various complaints against the Director’s Decision in the Form 86 and stated insufficient time was given for the applicant to prepare the relevant documents before the Board. 

8.  An oral hearing was held before the Judge on 13 December 2021 and the applicant confirmed to the Judge he was and continues to be acting in person.  The applicant also confirmed some background information and that he had no further update to the Court.  On 23 February 2022, the Judge dismissed the application.  The Judge held that Director’s Decision is not subject to judicial review once an appeal to the Board is made as the latter’s decision is final and supersedes the former: Re: Moshsin Ali [2018] HKCA 549. 

9.  As to the merits of the application against the Board, the Judge agreed with the Board’s findings and affirmed that the applicant had failed to establish his claim.   The Judge held that the Board was under a duty to make findings on the credibility of the applicant and such decision would not be interfered by the Court unless there was an error in law and procedure.  As there was an absence of such error, the Judge held that the Board’s decision was rational and therefore, the application was dismissed.

VI.  Grounds of Appeal

10.  The applicant in his notice of appeal stated the following :

‘ 1. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim.

2. I submit that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

3. The Adjudicator failed to make sufficient enquiring before finalizing the determination.  The Adjudicator stated that I had failed to advice any credible evidence to prove material elements of my claim.

4. The adjudicator has failed to give sufficient chance to me to arrange relevant evidence to my non‑refoulement claim as well as my appeal. 

5. The grounds of this appeal are that the gravity of my circumstances has noted been weighted or realized by both putative Respondents while considering my non-refoulement claim.  I should be given an opportunity to plead my case properly.’

11.  In the applicant’s written submission, he recited case authorities that are frequently used in general non‑refoulement claims and statutory reference without detailing how those principles related to his case. 

VII.   Our View

12.  The grounds of appeal as stated in the notice of appeal are similar to the grounds relied on by the applicant in the Form 86.  We are of the view that they are broad and vague allegations without specifics or elaboration.  These are not proper grounds of appeal.  In particular, the complaints against the Director have been expressly dealt with by the Judge in his decision dated 23 February 2022 at [17].

13.  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 Country of Origin Information 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 was 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.

14.  In our view, the applicant’s appeal is devoid of merits.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.