Shahzad Amir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 590 /2019

[2020] HKCA 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 590 OF 2019

(ON APPEAL FROM HCAL NO 711 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 6 December 2019[1] refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. The appeal is dealt with on paper without a hearing due to the non-compliance with an order for the lodging of a skeleton argument as mentioned below.

2.The applicant is a national of Pakistan of 29 years old.  He entered Hong Kong illegally on 6 July 2015 and surrendered to the Immigration Department on 6 August 2015.  He raised the non‑refoulement claim on 23 March 2016 on the basis that he will be ill‑treated or killed by Pakistan Muslim League (Quaid-e-Azam Group) (“PML-Q”) if he returns to Pakistan because of his past involvement in Pakistan Muslim League(Nawaz) (“PML-N”).

The Director’s decision

3.By a Notice of Decision dated 20 July 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.The Director assessed that the low intensity and low frequency of ill-treatment from the supporters of PML-Q in the past is an indication that the claimed risk of harm is unlikely to materialize and their intention to harm or kill the applicant is not as imminent as he claimed.  No severe pain or suffering within the statutory definition of torture had ever been inflicted upon the applicant and there is no evidence to show that the state government was involved.  The Director also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  

The Board’s decision

5.The applicant attended the hearing of the appeal against the Director’s decision on 13 December 2017.  At the hearing, the Board asked for the applicant’s comments on the inconsistencies and deficiencies in his evidence observed by the Board but he had no response or explanation.  The Board found that the applicant is not credible and did not accept that he was a member or supporter of PML-N.  The Board also did not accept that he faced any problems from PML-Q or police associated with them.  Therefore, the Board rejected the appeal on 10 April 2018. 

The intended judicial review

6.The applicant filed a Form 86 and an affirmation on 24 April 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He put forward these grounds for his intended challenge:

(1)     He was not given legal and language assistance in his appeal before the Board.

(2)     It was wrong for the Board not to hold a hearing for his appeal.

(3)     The Director failed to properly use the Country of Origin Information (“COI”) materials in a fair or balanced manner in assessing state protection in Pakistan or that the situations in Pakistan had improved and without giving any explanation as to how the balancing exercise worked in assessing his claim.

The judge’s decision

7.The Judge heard the leave application on 25 June 2019. 

8.For ground (1), the judge pointed out that the applicant had the benefit of legal representation in presenting his case to the Director and he was able to testify and make representation in his appeal hearing before the Board with the assistance of an interpreter and to answer questions put to him by the adjudicator without difficulty.  Neither the high standard of fairness nor the nature of the non-refoulement protection claim would entail that the applicant be given an absolute right to free legal representation at all stages of the proceedings[6].

9.Ground (2) is factually incorrect.  The Board did conduct an oral hearing on 13 December 2017 and this was attended by the applicant in person.

10.Regarding his complaint in ground (3) in respect of the failure to use the COI materials properly, the judge was of the view that the applicant did not provide any useful or meaningful particulars or elaborations for this complaint. Upon careful examination of the Director’s decision, the judge came to the view that the Director had properly and fully considered and analysed the relevant COI materials in assessing the issues before arriving at his conclusion with sufficiently clear explanation. The judge did not find ground (3) reasonably arguable.

11.The judge noted that the Board rejected the applicant’s claim essentially on its adverse finding of his credibility, with the benefit of oral evidence.  The judge did not find any reasonably arguable basis to challenge the Board’s finding.

12.For the above reasons, the judge held that the intended judicial review has no reasonable prospect of success and dismissed the leave application on 6 December 2019.

The grounds of appeal

13.The applicant filed a Notice of Appeal against the decision of the judge on 20 December 2019.  His grounds of appeal may be summarized as follows:

(1)     It was evident that the Director has failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case.  This has led to an unfair outcome of rejecting the applicant’s non-refoulement claim.  The Director, the Board and the Court failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the decision.

(2)     The Board failed to make sufficient enquiry before finalizing the determination. 

(3)     The applicant has no or limited options to bring his evidence before the tribunal.  The Board has failed to give sufficient chance to him to arrange relevant evidence.

(4)     The Director kept including meaning which suited his pre‑conceived conclusion when referring to the relevant COI materials in his decision.  This is a clear case of unfair attitude shown by the Director which is enough to render his decision void.

14.None of the above grounds of appeal were raised in his original leave application.

Non-compliance with order to lodge skeleton argument

15.Directions were given by the Registrar of Civil Appeals on 20 January 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

16.The appeal was scheduled to be heard on 27 May 2020.  On 17 April 2020, Kwan VP extended the deadline for the applicant to comply with the Registrar’s directions to lodge a skeleton argument to 8 May 2020.

17.The applicant failed to lodge a skeleton argument on or before 8 May 2020.  As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 15 May 2020, the court informed the applicant that the hearing date of 27 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

18.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

19.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. 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.

20.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. 

Analysis and disposition

21.An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below[7].  Therefore, the applicant’s grounds will not be entertained by the Court of Appeal as they were not raised in the original leave application.

22.In any event, the present grounds of appeal are just bare assertions without particulars, elaboration or evidence in support.  They do not constitute viable grounds to reverse the judge’s decision.  In particular, as correctly pointed out by the judge, the applicant’s case was rejected by the Board essentially on its adverse finding on his credibility.  The applicant has not adduced any evidence to refute the Board’s findings.  He has also failed to demonstrate any errors of law or procedural unfairness or irrationality in the decision of the Board. 

23.For the above reasons, we dismiss the appeal as there is no merit in the appeal and no prospect of success in the intended application for judicial review. 

The Applicant (Appellant), acting in person