RE HUSSAIN MUSTANSAR

CACV 631/2020

[2021] HKCA 1060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 631 OF 2020

(ON APPEAL FROM HCAL NO. 846 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 Bruno Chan dated 26 November 2020 who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

1.2  According to the written confirmation of the applicant dated 2 December 2020, he consented for this application to be dealt with on paper without an oral hearing.  Accordingly we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of Pakistan.  He entered Hong Kong illegally and was arrested in March 2015.  He then raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by his uncle due to family disputes over a piece of land in their home district.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [5] of the CALL-1 Form.

3)  The Director’s Decisions

3.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 13 September 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.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board on 5 September 2017.  After a hearing held on 22 February 2018, the Board dismissed the applicant’s appeal on 14 May 2018.

4.2  The Board found that the applicant’s unwillingness to discuss his claims at the hearing carried weight.  The Board was not persuaded that the alleged land dispute occurred.  The applicant’s claim that he had been brought before a Court and remanded before being released on bail implausible since he was able to exit Pakistan with his passport in his own name.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation.  He later lodged his written submissions.  The applicant stated that he lacked legal representation before the Board.  He further stated various grounds, namely, that his claims were not considered properly, torture existed in Pakistan although it might not be visible, he would not have left Pakistan if there was no risk and the Board’s decision was unfair and Wednesbury unreasonable.

5.2  The Judge held that the high standard of fairness does not guarantee a right to legal representation at all stages of the proceedings.  He held that the applicant’s grounds were broad and vague without specifics or elaboration as to how they relate to his case.  The Board rejected the applicant’s case mainly due to his lack of credibility.  The Judge could not find any legal error or procedural unfairness in the Board’s decision.   

6)  Grounds of appeal

6.1  The applicant stated in his notice of appeal that there are still serious threats in his home country and therefore he cannot go back.

6.2  In the applicant’s written submissions, the applicant cited various case authorities and section 37 ZT of the Immigration Ordinance that are used in non-refoulement claim proceedings without elaborating on how they relate to the particular circumstances of his case.

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 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.

7.2  In our view there is no merit in the applicant’s appeal.  The Judge had provided proper reasons for his refusal to grant leave.

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