RE AHMED ABDUL SHAKOOR

CACV 178/2020

[2020] HKCA 952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 178 OF 2020

(ON APPEAL FROM HCAL NO. 1330 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 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 8 June 2020.

1.2   This appeal was scheduled to be heard on 16 November 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 29 July 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 and was arrested.  He raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by some of the Shia Muslims in his home village over religious disputes.  The applicant is a Sunni Muslim.

2.2   The details of the applicant’s claim have been summarized by the Judge at [2] to [7] 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 15 December 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 15 February 2017 (‘the Director’s Further Decision’).  The Director’s Further 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 1 March 2017, the Board dismissed the applicant’s appeal against the Director’s decisions on 4 July 2018.

4.2   The Board’s accepted the applicant’s version of events.  It went on to analyze the applicant’s claim under four applicable grounds and held that the applicant cannot satisfy his claim under all applicable grounds.  Even though the applicant was involved in various incidents of fighting, his injuries were not serious.  There was no evidence that the Shia group ever uttered any substantive threat to the applicant at any stage.  The applicant’s fear was self-generated.  The applicant chose not to seek help from the authorities.  There was no finding of pain or suffering whether physical or mental.  No minimum level of severity was established.

5)  Decision of the Judge

5.1   The applicant filed a Form 86 with supporting affirmation before the Judge.

5.2   The Judge assessed the applicant’s documents and held that the applicant’s grounds for lack of language and legal representations cannot be made out.  He held that the high standards of fairness did not mean there was an absolute right to free legal representation at all stages of the legal proceedings.  The applicant’s complaints were broad and vague assertions without particulars or elaborations as to how they relate to his own case.

6)  Grounds of appeal

6.1   The applicant stated in his notice of appeal that he did not agree with the Judge and he wanted justice.

6.2   He further stated in his supplemental notice of appeal that the Shia group had beaten him up; the Shia group wanted to kill him so he fled; the Director did not screen his claim; the Director did not follow the United Nations Convention; the Board did not assist him; the bundle provided to him was in English; and the Board dealt with issues that were either not related to his claim or when he was not allowed to address those issues.

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 claims 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 are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The grounds of appeal are vague and without detail.  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.