RE SHAHZAD AMIR

CACV 127/2018

[2018] HKCA 642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 127 OF 2018

(ON APPEAL FROM HCAL 262/2017)

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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 Bruno Chan given on 27 April 2018 refusing leave 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 dated 19 May 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 6 May 2015 and 5 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  On 9 April 2009, he entered Hong Kong illegally and was arrested by the police on the same day.  After his arrest, he lodged a non-refoulement claim on 12 April 2009. 

3.  The applicant’s claim was based on the threat from his distant relatives over a land dispute.  According to the applicant, in early 2008 a number of distant relatives came to the applicant’s house.  They carried wooden sticks and threatened to kill the applicant.  Those relatives were rich and well-connected.  He decided to flee to Hong Kong.

4.  By a Notice of Decision dated 6 May 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 5 December 2016, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 23 December 2016 and 16 January 2017, the Board dismissed the appeal on 19 May 2017 (“Board’s Decision”).

7.  At [37] and [38] of the Board’s Decision, the Board concluded that “the contradictions showed that [the applicant] tried to make up a story but he did not plan it well…With his every effect to try to delay the proceedings and with such inconsistencies, there was not an iota of truth in what he had stated”.  The Board was also satisfied at [43] that state protection was available for the applicant and at [54] that internal relocation was viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 2 June 2017.  The Form 86 contained the following grounds for judicial review:

(1) the Board has unlawfully fettered its discretion by refusing his appeal;

(2) the Board acted in a procedurally unfair manner in dealing with his appeal;

(3) the Board’s decision in refusing his appeal is unreasonable or irrational in public law or the result of procedural error or unfairness; and

(4) the Board had failed to meet the greater care and duty owed to a self-represented claimant.

9.  In the affirmation in support of the leave application dated 2 June 2017, the applicant said that:

(1) because the hearing bundle was not provided earlier before the hearing, he was confused as to what would happen in the Board hearing;

(2) the Board hearing was unfair because the hearing bundle was not provided to the applicant earlier.  Even though the applicant answered all the questions honestly, his evidence was found to be not credible; and

(3) the Board had relied on news that were not officially recognized or were simply hearsay.  The Board wrongly concluded that it was safe for the applicant to return to Pakistan.

10.  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 to apply for judicial review.  The judge gave the following reasons for doing so at paragraphs 11 to 16 of the CALL-1 form:

“11. However, it is plain that all of these grounds are just broad and vague statements that without any particulars or specifics provided by the applicant, it is not easy to discern what error of law or procedural unfairness that he asserts the Board has made in its decision. However, in the same Form 86 as well as his supporting affirmation of the same date the applicant referred to these two points:

(a) that the hearing bundle of documents provided to him by the Director for his appeal before the Board are all in English and that it was only six days before the scheduled hearing on 16 January 2017 and hence there was insufficient time for him to prepare for his appeal; and

(b) that the Board had significantly relied on sources of news not officially recognized or was simply hearsay or outdated resulting in groundless speculation that it would be safe for him to return to Pakistan.

12. However, as noted above and as shown by the Board’s record, that hearing on 16 January 2017 was the second hearing which was adjourned from the first scheduled hearing on 23 December 2016, hence the hearing bundle must have already been provided to the applicant prior to the first hearing in December 2016 and not on 10 January 2017 as asserted by him, and therefore he would have had much more than six days to prepare for the hearing. In any event, he must have been familiar with most of those documents in the bundle such as the Director’s decision, his own torture claim form and other documents presented on his behalf by his legal representation under the Duty Lawyer Service, and his interview screening records, all of which he would have read before while he still had legal assistance.

13. Furthermore, if indeed he had any issue with the hearing bundle as he claimed for his appeal, he never raised it at all during the hearings when he appeared before the Board, as its decision recorded as follows:

‘26. In order to be fair to the Petitioner, an oral hearing session was conducted so as to enable the Petitioner to supplement whatever information he omitted to say from the records in the file.

27. After explaining to him the purpose of the oral hearing, he indicated he had nothing to say.

28. In view of the serious allegations against those officers who had helped him in processing his application and with a high standard of fairness as required, I have arranged for all the officers and interpreters to be present at the first hearing. I told the petitioner that since he made allegations against them, he was at liberty to call them to give evidence to see if they agreed to his allegations. The Petitioner did not call any of them.’

14. As for his complaint about the Board relying on unofficially recognized or hearsay or outdated COI, again the applicant has failed to provide any particulars or specifics in support, and upon examining those COI listed by both the Director and the Board in their assessment that it would be safe for the applicant to return or relocate to Pakistan, I am unable to discern anything amiss from their reliance of these COI or anything that may corroborate his complaint.

15. In the premises and for these reasons, I do not find any merit or basis in any of the proposed grounds of the applicant, and upon rigorous examination and anxious scrutiny of the decisions of both the director and the Board, nor do I 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.

16. In conclusion I am therefore not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

Grounds for appeal

11.  In the Notice of Appeal dated 2 May 2018 the applicant did not provide any grounds of appeal relating to the judgment below.  The only ground of appeal mentioned stated that he would face hardship if returned to his home country, that the TCAB had relied on sources of news which were not officially recognised or were hearsay and that the TCAB had relied on outdated cases, which were not identified.   

12.  In his skeleton submissions dated 20 August 2018, the applicant cited a number of authorities without explaining how they are relevant to the present appeal. The applicant did not advance any substantive argument.

13.  The applicant agreed by a letter of 15 May 2018 that the appeal can be heard by two judges. 

14.  The appeal was to be heard on 18 September 2018.  However, on that date, no appropriate interpreter was available, and the appeal was therefore adjourned to 20 September 2018, when we heard it.

General principles

15.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [HKCA] 524 at [14]:

“14. …

(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 the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(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 or for running arguments which could and should have been raised but were not raised before the judge. In the determination of 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: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

16.  The applicant failed to advance any valid ground of appeal in the Notice of Appeal.  He has conspicuously failed to identify any error committed by the judge, whether in his Notice of Appeal or skeleton submissions.  

17.  We have nonetheless considered the judgment below and the Board’s Decision.  We see no error in them and agree with the conclusions in the judgment and the Decision. We would therefore dismiss the appeal.