RE SYED SAJJAD AHMED alias SAJJAD GILANI

CACV 420/2022, [2023] HKCA 688

On Appeal From [2022] HKCFI 3242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 420 OF 2022

(ON APPEAL FROM HCAL NO. 2016 OF 2018)

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JUDGMENT

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

I.  The appeal

1.  This is an appeal against the decision (the ‘Decision’) of Deputy High Court Judge K.W. Lung of 20 October 2022 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 13 September 2018.  The Board dismissed his appeal against the decisions of the Director of Immigration (the ‘Director’) dated 2 February 2016 and 11 July 2017 which rejected his claim for non‑refoulement protection under all applicable grounds.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  The applicant lodged skeleton submissions within the stipulated timeframe as directed by the Registrar of Civil Appeals.  Accordingly the Court will deal with this appeal on paper based on the available documents. 

II.  Background

3.  The applicant is a national of Pakistan.  The applicant entered Hong Kong in December 2013 but he was refused permission to land.  He raised a non - refoulement claim on the same day on the basis that if he returned he would be harmed or killed by the ruling political party of the government who has adversely targeted the applicant.

4.  The background facts have been summarised by the Judge at [4]-[6] of the Decision.

III.  The Director’s Decision

5.  The Director’s 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 (the ‘Director’s Decision’).

6.  The Director decided against the applicant’s right to life claim on 11 July 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

IV.  The Board’s Decision

7.  After a hearing held on 12 July 2018, the Board dismissed the applicant’s appeal (the ‘Board’s Decision’).

8.  The Board found the applicant’s account to be untruthful.  It found that the applicant was not actively involved in the political affairs of his political group to the extent that he would be subject to attack.  It did not accept that the applicant had ever been attacked, and even if he had been, the injuries were minor.  It did not accept that the applicant would be subject to any real risk of harm if he is refouled.

V.  Decision of the Judge

9.  The applicant filed a Form 86 and a supporting affirmation on 24 September 2018.  The Form 86 contains mostly bare allegations unsupported by evidence.  The supporting affirmation contained two grounds which were first, that he was not given sufficient time to prepare his case before the Board since the hearing bundle was given to him shortly before the hearing.  Second, the applicant complained that the Board did not consider that he had already stayed in Hong Kong for 18 years and that his son was born in Hong Kong.

10.  The Judge held that for the first point there was no evidence from the applicant showing that he had informed the Board during the hearing that he was unprepared for the hearing.  For the second point, the Judge held that if the applicant was aggrieved for being rejected in his application for permission to stay, he has the right to specifically challenge that in a separate judicial review action according to case authority.

11.  The Judge was not satisfied that there was any realistic prospect of success in the applicant’s intended application for judicial review and accordingly refused his leave application.

VI.  Grounds of appeal

12.  In the notice of appeal filed on 25 October 2022, the applicant stated the following in brief :

1)  The decision makers have failed to give sufficient weight to his arguments.

2)  The Director failed to appreciate state acquiescence in his case.

3)  The Adjudicator failed to make sufficient enquiries.

4)  The Adjudicator failed to give sufficient chance for him to arrange relevant evidence.

5)  The Director while referring to country of origin information, chose to adopt matters which suited his pre‑conceived conclusion.

13.  In the written submissions lodged on 8 November 2022, the applicant simply stated general non-refoulement principles, statute and case authority without specifying how they relate to his case.

VII.  Our view

14.  In our view, the applicant’s notice of appeal and written submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing his application.

15.  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.

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