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

CACV 290/2020

[2021] HKCA 127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 290 OF 2020

(ON APPEAL FROM HCAL NO 1486 OF 2018)

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BETWEEN

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Before:  Hon Cheung JA, B Chu and S T Poon JJ in Court

Date of Hearing:  26 January 2021

Date of Judgment: 29 January 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan in which he refused to grant leave to the applicant to apply for judicial review. 

2)  Factual background

2.1The applicant is a national of Pakistan.  He entered Hong Kong as a visitor on 7 December 2011 and overstayed.  He was arrested by police on 24 May 2012 and subsequently filed a non-refoulement claim. 

2.2The basis of the applicant’s claim is that he would be harmed or killed by supporters of rival political party Pakistan Muslim League – Q (“PML-Q”). 

2.3The background facts have been summarized by the Judge in the Form Call-1[1] at [2]-[6].

3)  The Director’s Decision

3.  The Director of Immigration (“the Director”) decided against the applicant’s torture claim on 5 April 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (“BOR 3”), Bill of Rights Article 2 (right to life) risk (“BOR 2”), as well as other statutory and convention rights against torture and persecution (“the Director’s Decision”).

4)  The Board’s Decision

4.1The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (“the Board”) on 19 April 2017.  After a hearing held on 30 May 2018, the Board dismissed the applicant’s appeal on 9 July 2018 (“the Board’s Decision”).

4.2The Board found that the applicant’s evidence was confused and inconsistent.  His alleged involvements with a political group were vague and rehearsed.  The Board did not find the applicant a credible witness.  The Board did not accept that the applicant was politically active or that he had been threatened or pursued by PML-Q.  The Board found it is unlikely that the applicant will face any risk of harm from the PML-Q supporters.  The applicant’s claim failed on all applicable grounds.

5)  Decision of the Judge

5.1The applicant complained before the Judge that the Director did not give him a fair chance to express himself.  He further stated that the Director misunderstood his fear of threats and harm from PML-Q.  He complained that the documents provided to him in the hearing bundle and the Board’s decision were never translated to him which was procedurally unfair. 

5.2The Judge held that the applicant’s complaints were broad and vague without particulars.  He held that there was no basis to fault the Director in misunderstanding his claim.  The applicant had the benefit of legal assistance in the early stages of his claim and most of the documents had been made available to him at that time.  The Board rejected the applicant’s claim based on an adverse finding of his credibility and the Board had gone through a detailed analysis on the applicant’s credibility. 

6)  Grounds of appeal

6.1The applicant in the notice of appeal stated that he would like to reject and review the Board’s decision, as it has disregarded his dangerous situation.

6.2In his written submissions, the applicant stated that his home country still has political problems.  Pakistan has long had human rights problems.  The police were corrupt.  The country of origin information stated in the Board’s decision disregarded cultural context. There were secret military courts trying terrorism suspects.  It was easy to track someone and kill him in Pakistan.  The government failed to protect its citizens.

6.3At the hearing, the applicant indicated that he has nothing to add apart from what he has written down on the papers.

7)  Our view

7.1We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  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: Re Zunariyah [2018] HKCA 14; Re Qadir Sher [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. 

7.2It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  The applicant has failed to do so.

7.3We see no basis to disturb the Deputy Judge’s Decision.  Accordingly, the appeal is dismissed.

The applicant, unrepresented, appearing in person