RE IQBAL PARVAIZ

CACV 452/2019

[2020] HKCA 76

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 452 OF 2019

(ON APPEAL FROM HCAL NO. 915 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 Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the the Torture Claims Appeal Board and the Decision of the Director of Immigration.

1.2  This appeal was scheduled to be heard on 21 January 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 17 October 2019, the applicant failed to lodge the skeleton argument by 24 December 2019. 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 entered Hong Kong illegally and surrendered to the Immigration Department.  He raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his wife’s brother over their religious dispute.  He claimed that he had fired a pistol out of self defence and he was wanted by the police for the shooting incident.

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [7] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration decided against the applicant’s claim on 20 April 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 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 on 27 April 2017.  After hearings held on 7 February 2018 and 3 May 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 16 May 2018.

4.2  The Board found that there was uncertainty, exaggeration and untruthfulness in the centerpiece of the applicant’s claim.  It did not accept that the alleged shooting incident ever occurred or that the applicant would be at risk of being subjected to harm in the future.  Internal relocation was found possible.

5)  Decision of the Judge

5.1  The applicant complained before the Judge that he was not provided legal representation for his appeal before the Board.  He complained that the Director and the Board failed to take proper or sufficient consideration of his supporting documentary evidence.  He complained that the Director and the Board failed to give any reason for rejecting his claim.

5.2  The Judge held that there was no right to free legal representation at all stages of the proceedings.  He held that it was a vague and broad complaint of the applicant to suggest that there was a lack of consideration of the applicant’s evidence.  The Judge held it was factually incorrect that the Board or the Director failed to give any reasons for rejecting the applicant’s claim.

6)  Grounds of appeal

6.  In summary, the applicant in his notice of appeal repeated his factual background.  He regurgitated legal principles, statutory and convention rights without detailing how those principles relate to his case.  He complained that his legal representation service ended with the decision from the Immigration Department.  There were no complaints against the decision of the Judge.

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 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 are no merits in the applicant’s appeal.  The Board’s Decision and the Decision of the Judge had already made the position clear.

7.3  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.