RE ADNAN HAIDER

CACV 35/2020

[2020] HKCA 946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 35 OF 2020

(ON APPEAL FROM HCAL NO. 1614 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.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board.

2)  Background

2.1  The applicant is a national of Pakistan.  He arrived in Hong Kong illegally in June 2012 and was arrested in October 2012, after which he raised a torture claim.  In late December 2013, the applicant’s torture claim was rejected.  The applicant then applied for non-refoulement and the Director then considered his claim on the basis of Article 2 of the Bill of Rights (‘BOR 2’), Article 3 of the Bill of Rights (‘BOR 3’), and persecution risk.  

2.2  The applicant claimed that he would be tortured and seriously harmed by his relative Khuram over a land dispute.  The details of the applicant’s claim have been summarized by the Judge at [4] to [5] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration decided against the applicant’s claim on 15 January 2018.  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 rights against persecution.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 8 May 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 16 July 2018.

4.2  The Board accepted the applicant’s version of events.  The Board went on to analyze BOR 2, BOR 3 and persecution risks, and ultimately found that the applicant cannot satisfy the threshold for the three heads of claims.  The Board found that there was no real risk of the applicant being subjected to torture under BOR 3, since state protection was available and internal relocation was possible.  The Board found that there were no reasons related to race, religion, nationality, political opinion or membership of a group that justified persecution risk.  There was also no evidence to support the claim that the applicant may be arbitrarily be deprived of life upon return to his home country.

5)  Decision of the Judge

5.1  The applicant complained before the Judge that Khuram was a powerful person in Pakistan and that his life would be in danger if he returned.

5.2  The Judge held that there was no evidence to show that the Board fell into error.  The applicant stated in Court before the Judge that he had no comment as to the findings of the Board. 

6)  Grounds of appeal

6.  The applicant in his notice of appeal simply stated that he wished to have leave for judicial review.  In his supplemental notice of appeal and in his written submissions, the applicant made various complaints that were all broad and vague assertions.  The applicant also tried to go into various factual matters of his case when the Board has already held that it accepted the applicant’s version of events.

7)  Our view

6.1  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 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.

6.2  In our view there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

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