RE SHAH HASNAIN ALI

CACV 241/2020

[2020] HKCA 940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 241 OF 2020

(ON APPEAL FROM HCAL NO. 1785 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1)  The appeal

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.

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 his uncle for the purpose of pressuring his father to give up certain land.  He also feared that he might be harmed by his uncle because he did not vote for the political party which his uncle supported.

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

3)  The Director’s Decision     

3.   The Director of Immigration decided against the applicant’s claim on 15 January 2018.  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.

4)  The Board’s Decision

4.1   The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 9 July 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 27 August 2018.

4.2   The Board’s Decision found that overall the applicant’s claim was incredible.  There was no evidence that the applicant’s uncle had ever threatened the applicant’s father that if the father did not concede his land, the uncle would harm the applicant.  It was clear from the evidence that the alleged attack seemed to have been confined to the father alone and not to any other family members of the applicant.  The applicant suffered no injuries. Later during election time, when the applicant was injured, it was the result of the uncle and supporters of his political party vandalizing the applicant’s home but they did not intend to hurt the applicant.  The applicant failed to establish any of the risk claims.  The Board found that internal relocation was possible.

5)  Decision of the Judge

5.1   The applicant filed a Form 86 with supporting affirmation, simply stating that he did not agree with the Board’s decision.  Nothing was said about any error of the Board.

5.2   The Judge held that evaluation of evidence was a matter for the Director and the Board.  The applicant was unable to show that he has any reasonable prospect of success in his intended judicial review.  Leave was refused.

6)  Grounds of appeal

6.1   The applicant in his notice of appeal stated that the Judge’s Decision was not a fair judgment.  He stated that he wanted justice.  He further stated that the Court failed to show good cause to reject his claim.  

6.2   In the applicant’s written submissions, he again made bare allegations without specifics.  He stated that his claim was not screened.  He said the Judge simply ‘wrote’ the Board’s Decision.  He stated that he will not return to his home country unless his problem is solved.

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 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 claims, 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 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.