RE MUHAMMAD ASGHAR SHAIKH

CACV 391/2020

[2021] HKCA 269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 391 OF 2020

(ON APPEAL FROM HCAL 2872/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung given on 6 August 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 18 October 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 17 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He claimed to have entered Hong Kong on 24 October 2006 illegally and was arrested by the police on 18 May 2007.  He lodged a torture claim on 5 July 2007 which was dismissed by the Director on 31 May 2011.  His petition against the Director’s decision was dismissed on 19 July 2011.   On 5 March 2013, he lodged a claim for protection from BOR 3 risk^[1].

3.  The applicant claimed that in 2005 he took part in a fight which occurred during a cricket match.  The fight was between supporters of two different political parties, the Pakistan Muslim League-N (“PMLN”) and the Pakistan People’s Party (“PPP”).  The applicant believed that he caused serious injuries to a person known as DP who later died from that the injuries.  The applicant escaped from Pakistan to avoid the supporters of PPP and also to avoid the Pakistani police who had a warrant for his arrest.  The details of the applicant’s claim have been summarised by the Board at [2] – [3] of the Board’s Decision.

4.  By a Notice of Decision dated 31 August 2015 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR3 risk and the persecution risk^[2].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 18 August 2016, the Board dismissed the appeal on 2 March 2017 (“Board’s Decision”).

6.  At [24] of the Board’s Decision, the Board found that the applicant’s story was unreliable and that he was not a genuine claimant.  The Board was also satisfied that even if the applicant’s story were true, they did not establish any substantial risk of harm from BOR3 risk or persecution risk.  The Board held at [10] that in any event, internal relocation would be viable.

7.  By a Notice of Further Decision dated 17 May 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[3], and decided against him.

8.  The applicant again appealed to the Board.  On 18 October 2018, the Board dismissed the appeal without a hearing.  At [15] of the Board’s decision dated 18 October 2018, the Board held that the consideration in the previous decision dated 2 March 2017 was applicable.  The Board therefore found that the applicant had failed to establish a case for protection from BOR2 risk as well.

The judge’s decision

9.  The applicant filed a Form 86 on 14 December 2018 against the Board’s decision dated 18 October 2018.  The Form 86 did not contain any ground for seeking relief. 

10.  In the affirmation in support filed on the same day, the applicant deposed that:

“I requestly I needed want making (JR) because I am not satisfied in decision of [the Board and Director] because I don’t want to go back in my country, because my life is still dangerous, because I’m safe here in HK, I have a family here in HK.”

11.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

12.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [18] of the CALL-1 Form:

“14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the ground advanced by the applicant.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. … 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 the decision of the Board.’

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision or in the Board’s Further Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

Grounds for appeal

13.  In the Notice of Appeal filed on 18 August 2020, the applicant contended that:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.”

14.  In his skeleton submissions dated 2 February 2021, the applicant submitted that:

(1) he did not submit his claim for protection immediately upon his arrival in Hong Kong because he was not familiar with the system at the time;

(2) the applicant claims that the Pakistan government has human rights issues and will not be able to protect him;

(3) the Board only relied on the country of origin information (“COI”) but failed to understand the “cultural context” in Pakistan; and

(4) because Pakistan is a Muslim country, it is easy for someone to track the applicant down.

15.  The applicant agreed by a letter of 18 August 2020 that the appeal could be heard by two judges.  Despite being given notice by letter dated 18 January 2021 that the appeal would be heard on 1 March 2021, the applicant failed to appear at the hearing before us.  When contacted by telephone, the applicant indicated merely that he was at home.  In these circumstances, we proceeded to deal with the appeal on the basis of the Notice of Appeal, appeal bundle and written submission lodged by the applicant.

Discussion

16.  In the grounds of appeal set out in the Notice of Appeal and written submission, the applicant complained of errors on the part of the Director and the Board, but did not identify any error on the part of the judge.  He only claimed that the judge disregarded his dangerous situation without giving any details.  As has often been pointed out, an application for judicial review is not a further appeal.  The primary fact finders and decision makers are the Director and the Board, and the court hearing an application for leave to bring judicial review proceedings will only accede to the application if some public law error is shown on the part of the decision maker.  The allegation that the judge disregarded the applicant’s situation is therefore not a viable ground of appeal.  In an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  In any event, having examined the judge’s decision, we can see no error in it.

17.  Further, the applicant advanced a number of new complaints in this appeal that were not previously raised as grounds for judicial review.  It is not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).

18.  As for the ground of appeal based on the alleged danger the applicant will face upon his return, quite apart from the fact that this is not a valid ground of appeal, we note that the Board has given detailed reasons for finding the applicant to be incredible and for its conclusion that he may safely relocate to other parts of Pakistan.  We do not accept that the applicant has established any public law error in those findings by the Board.  In any event, the applicant did not address the finding by the Board that even if the applicant’s story were true, it did not point to any substantial risk of harm to the applicant.  This ground must also be dismissed.

19.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.