RE MUHAMMAD ASHRAF

CACV 332/2020

[2021] HKCA 364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 332 OF 2020

(ON APPEAL FROM HCAL NO. 2585 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 29 July 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 16 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 had repeatedly entered Hong Kong using different passports with different names.  He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by the Shia community.  

2.2  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 (‘the Director’) decided against the applicant’s claim on 28 November 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 (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 29 June 2018, the Board dismissed the applicant’s appeal against the Director’s Decision on 31 October 2018.

4.2  The Board found that there were significant discrepancies between what the applicant had written in his application and what he presented during the hearing.  It found that he was not a witness of truth.  The applicant delayed in seeking non-refoulement protection.  The Board found that he has fabricated his story.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation.  He set out various grounds for review including :

(1)  Procedural impropriety in failing to consider country of origin information of Pakistan;

(2)  Irregularity in failing to give weight to relevant materials;

(3)  Irrationality in failing to consider consistent system of human rights violation;

(4)  No reasonable basis for rejecting his evidence;

(5)  Failing to consider state acquiescence; and

(6)  No proper basis for assessing internal relocation.

5.2  The Judge held that the applicant appeared before him and confirmed that he was free to express himself before the Adjudicator of the Board.  It was held that the grounds stated by the applicant did not assist him without any evidence or particulars in support. 

6)  Grounds of appeal

6.  Doing the best we can to understand the applicant’s grounds of appeal, he said that the Court erred in relying on the Director’s Decision.  He claimed that the Court has erred in finding state protection was available.  He complained that he was not legally represented during the hearing.  He alleged that BOR 2 should be assessed separately.

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.