Re Ali Hasnain

CACV 420/2019

[2020] HKCA 218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 420 OF 2019

(ON APPEAL FROM HCAL NO. 827 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 Josiah Lam (‘the Judge’) who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) and the decision of the Director of Immigration (‘the Director’).

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 21 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 on 19 December 2014.  He raised a non‑refoulement claim on the basis that if he was repatriated he would be harmed or killed by the people of the Pakistan Muslim League (Nawaz) because he supported the rival Pakistan People’s Party.

2.2.The details of the applicant’s claim have been summarized by the Judge at [3] to [7] of the CALL‑1 Form.

3)  The Director’s Decision     

3.The Director decided against the applicant’s claim on 2 December 2016.  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’), BOR Article 2 (right to life) risk 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 April 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 26 April 2018.

4.2.The Board found essentially that the applicant’s version of events was incredible.  Even on the applicant’s own case, there was no evidence of state involvement, consent or acquiescence.  The complained matter was a private dispute and not on account of any Convention reasons.  There was no minimum level of severity.  There was a failure to prove reasonable state protection was lacking.  Internal relocation was viable.

5)  Decision of the Judge

5.1.The applicant complained before the Judge, amongst other things, that the Board failed to make sufficient enquiry.  He complained that he was in custody which was why he failed to bring evidence before the Board.  He complained that the Board did not give him enough chance to arrange his evidence.

5.2.The Judge held that the applicant admitted before him that he was freed on recognizance before he attended the Board hearing.  The Judge held that the applicant failed to provide details of how it was that the Board failed to make sufficient enquiries and failed to give him chance to arrange his evidence. The Judge further stated :

‘ 28. The Applicant made a last-minute complaint in court accusing the duty lawyer acting for him at the Director’s stage had cut his story short and wrote differently from his instruction. He also complained the Director and the Adjudicator crossed out his reference to religious disputes between Sunni Muslims and Shia Muslims in Pakistan. He was a Shia Muslim. These complaints were not mentioned or hinted in the Applicant’s affirmation or Form 86 at all. There was no evidence to show religious conflict was ever a basis of the Applicant’s non‑refoulement claim.’

6)  Grounds of appeal

6.The applicant stated that the Judge was wrong in holding there was no state acquiescence or involvement, and the Judge failed to provide detailed reasons and that the country of origin information ‘was denied’ in the judgment.

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 into 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.The Judge had provided sufficient reasons in refusing leave to apply for judicial review.  Further, as for state acquiescence, it was not the main issue in the Board’s decision.  As the Judge observed, the applicant had never sought help from the Pakistan Police or authorities, this is clearly not a proper complaint against the decision of the Judge.

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

Applicant, unrepresented, acting in person