AWAIS v. TORTURE CLAIMS APPEAL BOARD

CACV 534/2020

[2021] HKCA 564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 534 OF 2020

(ON APPEAL FROM HCAL NO 548 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  The applicant lodged a Notice of Appeal on 30 September 2020 against the decision of Deputy High Court Judge Bruno Chan dated 18 September 2020[1]. By that decision, the judge refused to grant leave to the applicant 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.  He is 26 years old.  He entered Hong Kong illegally on 5 July 2016 and was arrested by the police on 11 July 2016.  On 5 September 2017, he raised a non‑refoulement claim on the basis that if he returns to Pakistan he will be harmed or killed by certain fellow villagers over some personal dispute. 

3.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal.  He lodged his written submissions on 4 January 2021 pursuant to the directions of the Registrar of Civil Appeals. 

The Director’s decision

4.  By a Notice of Decision dated 30 November 2017, the Director of Immigration (“the Director”) rejected the applicant’s non‑refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

5.  The Director considered that the level of risk of harm upon the applicant's return to Pakistan is low and did not accept that his past experience of harm had attained the required minimum level of severity for non-refoulement protection.  The Director found that the applicant’s problem with the fellow villagers is a private dispute with no involvement of the Pakistani government.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

6.  The applicant appealed to the Board against the Director’s decision.  The Board conducted an oral hearing on 21 March 2018.  The applicant stated in the hearing that he did not want to answer any question.  The adjudicator told the applicant that he had some queries about the applicant’s claim and would be unlikely to reverse the Director’s decision if the applicant chose not to answer the questions.  The applicant said he understood this and still did not want to answer any question and wanted to rely on the information in the bundle. 

7.  The Board considered that there is no credible evidence to show that the applicant will face a real risk of proscribed harm from his enemies, persecution or torture if he is refouled to Pakistan.   The Board also did not accept that the applicant will face a real risk of being deprived of his right to life or being subjected to cruel, inhuman and degrading treatment or punishment.   Thus, the Board decided that the applicant’ non-refoulement claim was not substantiated on all applicable grounds and rejected the appeal on 23 March 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 3 April 2018 to seek leave to apply for judicial review against the decision of the Board. He only stated in his supporting affirmation that the decision is unfair and unreasonable. 

The judge’s decision

9.  The judge considered the application on the papers as the applicant had not requested for an oral hearing.  The judge found that the applicant does not have any reasonably arguable basis to challenge the decision of the Board as he had not provided any particulars or elaboration in support.  The judge was not satisfied that the applicant has any prospect of success in his intended judicial review as there is no error of law or procedural unfairness in the decisions of the Director and the Board. Therefore, the leave application was dismissed on 18 September 2020.

Grounds of appeal

10.  The applicant stated as his grounds of appeal in the Notice of Appeal filed on 30 September 2020 that it is still not safe for him to return to Pakistan and he will be in danger.

11.  In his written submissions, he put forward further contentions which may be summarized as follows:

(1)  the Board had unlawfully fettered its discretion by refusing the appeal on the grounds that it did not satisfy the requirements;

(2)  the Board’s decision was unreasonable or irrational in the public law sense or was the result of procedural error or unfairness;

(3)  the Board failed to apply high standards of fairness owed to a self-represented claimant;

(4)  the hearing bundle which is all in English was provided to the applicant without giving him sufficient time to prepare for his appeal before the Board;

(5)  the Board had significantly relied on sources of news not officially recognized or were hearsay or outdated that resulted in its groundless speculation that it would be safe for him to return to his home country;

(6)  the Director failed to consider the concept of extended acquiescence;

(7)  the government cannot protect him as all senior officers are Shia and the applicant’s enemies have connection with the police;

(8)  at the hearing in court, the applicant was not allowed to talk about the Board’s decision.  The judge just asked about his name and address.

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 materials and risk of harm, state protection and viability of internal relocation is 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.  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.

Analysis and disposition

15.  Many of the applicant’s grounds were not raised in his leave application including those concerning the hearing bundle, the Board’s reliance on unreliable sources of news, state protection as well as the Director’s failure in considering the concept of extended acquiescence.  The Court of Appeal would not entertain these new grounds as an appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below[6].

16.  In any event, his grounds are without merits.  There is nothing amiss arising from the hearing bundle as most of the documents should be well familiar to the applicant as they had been made available to him earlier when he still had legal representation and he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal at the hearing before the Board.  Instead, he insisted in relying on the information in the bundle and refused to answer questions at the Board’s hearing. 

17.  The rest of his grounds are just bare assertions without particulars and evidence in support.  In particular, his complaint against the judge for not allowing him to talk about the Board’s decision is merely imaginary as no oral hearing was held at the court below for his application.  He has failed to demonstrate that the judge had made any error 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, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review.  We therefore dismiss this appeal.