RE BUTT MUHAMMAD USMAN

CACV 252/2021

[2021] HKCA 1554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 252 OF 2021

(ON APPEAL FROM HCAL NO 1261 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  On 4 May 2021, Deputy High Court Judge Bruno Chan (“Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 7 May 2018.  In  that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 7 November 2016 rejecting the applicant’s non‑refoulement claim.

2.  On 17 May 2021, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Pakistani national.  He was arrested by the police on 7 August 2013, having entered Hong Kong illegally.  He was referred to the Immigration Department on 9 August 2013.  The applicant had registered an asylum claim with the UNHCR by 16 August 2013.  On 11 March 2014 he lodged his current non‑refoulement claim. 

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by a man named Saleem and members of his religious militant group.  The factual background of his claim was set out at [19] to [35] of the Board’s decision.

5.  By notice of decision dated 7 November 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 9 March 2018, during which the applicant gave oral evidence and answered questions from the Board. The Board found that the applicant’s claim was implausible, in large part because he could not name the religious militant group and could not give any particulars about that group, and also due to the paucity of details in his claim overall.  The Board also considered that the fact that the applicant had previously travelled to South Africa and mainland China, but withdrew his asylum claim in South Africa and did not seek asylum in China, as undermining his current claim.

7.  Thus the Board determined that there was no real risk of harm in the event of refoulement, but also found that internal relocation was viable in any event.  Accordingly, in its decision dated 7 May 2018 the Board dismissed the applicant’s appeal with reference to all the applicable grounds.

Decision of the court below

8.  On 4 July 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation, he stated that he could not go back to his country because life was in danger there.  He did not however specify any actual grounds for judicial review in the sense of any errors or unfairness in the process or decision of the Board.

9.  Following consideration of the documents only, on 4 May 2021 the Judge refused leave for judicial review.  The reasons for the refusal were set out at [11]‑[13] of the Form CALL‑1 ([2021] HKCFI 1207, HCAL 1261/2018) as follows:

“ 11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Appeal to this Court

10.  On 17 May 2021, the applicant filed a Notice of Appeal against the Judge’s decision, in which he simply stated that the court below “could not show any good cause to refuse his case”.

11.  On the same day, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

12.  The Registrar of Civil Appeals directed on 2 July 2021 that the applicant must lodge his written submissions on appeal on or before 14 July 2021, failing which the appeal would be processed based on the available documents.

13.  The applicant has to date failed to lodge any submissions as directed.  This appeal is accordingly disposed of on paper without a hearing, based on the available documents.

Legal principles

14.  As has been set out in previous decisions of this Court (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]), the role of the Court in a judicial review is not to provide a further avenue of appeal; the Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In determining an appeal against the refusal of leave for judicial review by the Court of First Instance, the Court of Appeal examines the decision of the judge below in light of the grounds of appeal advanced by the applicant.  If no viable ground is put forward, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review or an appeal from the Board.

Discussion

15.  In his Notice of Appeal, the applicant did not raise any specific grounds or identify any errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision, but merely stated that the court below could not show any good cause to refuse his case.  For this reason alone, the appeal should be dismissed.

16.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection mainly based on its finding that the applicant’s claim was implausible due to his inability to name or provide details as to the religious militant group, and the paucity of details in his claim overall.  The Board determined that there was no real risk of harm in the event of refoulement, and found that internal relocation was viable in any event.  Such findings were open to the Board, and the applicant has failed to advance any valid public law grounds for the court’s intervention by way of judicial review. 

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable case for judicial review.  The Judge was right to refuse leave.

18.  For these reasons, the appeal is dismissed.

[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[2] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).