Re Khalid Mehmood

CACV 158/2020

[2020] HKCA 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 158 OF 2020

(ON APPEAL FROM HCAL NO. 1632 OF 2018)

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Before:  Hon Cheung JA and G Lam J in Court

Date of Hearing:  16 November 2020

Date of Judgment:  20 November 2020

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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.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board.

2)  Background

2.1The applicant is a national of Pakistan.  In August 2004 he entered Hong Kong as a visitor but he overstayed and was arrested in March 2009 when he surrendered to the Police.  He raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his brother- in- law named Ali because of their dispute over his sister’s marital problems.  

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

3)  The Director’s Decision and Director’s Further Decision

3.1The Director of Immigration decided against the applicant’s torture claim on 24 May 2012.  The applicant then made a further claim to the Director, whereby the Director replied that as a previous torture claim was dealt with, the Director proceeded to deal with the applicant’s Bill of Rights Article 3 (right against torture and cruel and inhuman treatment) (‘BOR 3’) claim and persecution claim. The two claims were decided against the applicant by a notice of decision dated 17 December 2015 (‘Director’s Decision’).

3.2The Director then decided against the applicant’s right to life claim on 10 July 2017 (‘Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.1The applicant appealed against the Director’s Decision and Director’s Further Decision to the Board.  After a hearing held on 27 June 2018, the Board dismissed the applicant’s appeal against the Director’s Decision and the Director’s Further Decision on 2 August 2018.

4.2The Board’s Decision held that the applicant’s case was not credible.  The Board stated that the applicant’s case was simply a domestic dispute between his brother- in- law and his sister’s marriage.  It had nothing to do with the applicant himself directly.  No police report was filed.  It was inherently improbable that there was danger to his life when the applicant had political connections while the alleged brother- in- law had little.  The applicant had no documentation to prove his claims.  Internal relocation within Pakistan was possible.

5)  Decision of the Judge

5.1The applicant’s complaint before the Judge was that he was simply not satisfied with the Board’s Decision.

5.2The Judge held that the applicant’s complaint was not supported by evidence.  The applicant’s application had no reasonable prospect of success for judicial review.

6)  Grounds of appeal

6.1The applicant in his notice of appeal stated that he was not satisfied with the Judge’s Decision as it departed from the facts, and that there was no transparency.

6.2In the applicant’s written submissions, he again made allegations without specifics that the Court’s decision was not transparent.  He stated that the local police and local authorities were very corrupt and would kill anyone as they please.  There are many examples available on the internet of people being tortured.  The Board ignored evidence.  He wishes to stay in Hong Kong until his problems are solved.

7)  Our view

7.1We 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 was 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.

7.2In our view there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

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

Applicant, unrepresented, acting in person