RE HUSSAIN JAWAD

CACV 367/2020

[2021] HKCA 365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 367 OF 2020

(ON APPEAL FROM HCAL NO. 2853 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 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 (‘the Board’) on 5 August 2020.

1.2  This appeal was scheduled to be heard on 26 January 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 26 November 2020, the applicant failed to lodge the skeleton argument by the stipulated 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.  He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by supporters of the Pakistan Peoples Party.  He was a member of a rival political party.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [4] to [6] of the CALL-1 Form.

3)  The Director’s Decisions

3.1  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 23 October 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  The Director decided against the applicant’s right to life claim on 7 December 2016.  The decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s decisions to the Board.  After a hearing held on 14 November 2018, the Board dismissed the applicant’s appeal against the Director’s decisions on 22 November 2018.

4.2  The Board found that assertions made by the applicant were speculative and not supported by evidence.  The Board found the applicant’s story totally incredible.  The Board also then went on to dismiss the applicant’s case on all applicable grounds.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation which contained exhibits of previous official documents regarding his non-refoulement claim.  He set out various grounds for review on his Form 86 including :

(1)  The Director’s and the Board’s decisions were unreasonable and unfair;

(2)  Lack of appreciation of state acquiescence;

(3)  Failed to give proper weight to country of origin information; and

(4)  Corruption in the applicant’s home country is still a serious problem.

5.2  The Judge held that the applicant’s various grounds were merely his opinion without any evidence in support of his complaint.   

6)  Grounds of appeal

6.1  The applicant in his notice of appeal stated that the gravity of his circumstances has not been weighed or realized and he should have been given the chance to plead his case.

6.2  In the applicant’s supporting affirmation, he stated ‘there is a good ground of appeal that was not necessarily considered at the stage of applying for judicial review’.

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.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

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