Re Faisal Shahzad

CACV 602/2020

[2021] HKCA 930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 602 OF 2020

(ON APPEAL FROM HCAL NO 414 OF 2018)

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Before: Hon Barma JA and Linda Chan J in Court

Date of Hearing: 22 June 2021

Date of Judgment: 13 July 2021

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J U D G M E N T

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Hon Linda Chan J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 6 July 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 9 March 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 18 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong on 3 January 2016 illegally and surrendered to the authorities on the next day.  He lodged a non-refoulement claim on 6 July 2016.

3.The applicant’s claim was based on threats from the family of his deceased friend (Khawar) because they suspected the applicant was responsible for Kuawar’s death.  The details of the applicant’s claim have been summarised by the judge at [1] to [6] of the CALL-1 Form.

4.By a Notice of Decision dated 18 September 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 February 2018, the Board dismissed the appeal on 9 March 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [21] – [23] of the Board’s Decision, the Board found that applicant failed to provide sufficient evidence to substantiate his claim for non-refoulement protection and that there are serious questions in the core of the applicant’s claim.

The judge’s decision

7.The applicant filed a form 86 on 13 March 2018 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application dated 26 February 2018, the applicant deposed that:

“I want to judicial review the decision of the [Board]. This decision is unfair and unreasonable.”

9.The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [16] of the CALL-1 Form:

“11. On 13 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward only one broad ground that the decision is unfair and unreasonable without any particulars or specifics or elaborations as to how it is so, nor did he identify any error of law or procedural unfairness in his process before the Board or in the Board’s decision. As such I do not find this ground reasonably arguable for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13. In the present case, the Applicant refused to give evidence or to answer questions from the adjudicator to clarify or elaborate his evidence in the documents concerning the core of his claim notwithstanding the invitation of the adjudicator, and there was no objective evidence to support his material assertions. Based on his evaluation of the available evidence, the adjudicator rejected the Applicant’s claim on the basis that he failed to substantiate his claim, of which as noted above the adjudicator was entitled to do so, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

11.The applicant was late in bringing the intended appeal.  After considering the explanation offered by the applicant and the situation of the postal service and the High Court Registry in the light of the prevailing public health situation, the judge granted extension of time to appeal on 28 October 2020.

12.In the Notice of Appeal filed on 11 November 2020, the applicant stated that:

“[the judge] refused my judicial review but he did not show any good reason but he did not consider my arguments. It is not correct judgment.”

13.In his skeleton submissions filed on 24 May 2021, the applicant explained why it is unsafe for him to return.  He also claimed that “on my oral hearing [the judge] did not let me tell to [sic] my problem but in CALL ONE the judge write all my story.”

14.The applicant agreed by a letter of 11 November 2020 that the appeal could be heard by two judges.  The applicant does not attend the hearing of the appeal.  Upon being contacted by the clerk, the applicant confirms that he has nothing further to add and that he will not attend the hearing.

Discussion

15.The applicant claims that the judge failed to consider his arguments and that the judge failed to give sufficient reasons. As noted by the judge at [11] of CALL-1 Form, the applicant only claimed that the Board’s Decision was unfair and unreasonable but he did not give any particulars in support of those grounds.  The judge nonetheless considered the decisions by the Director and the Board with rigorous examination and anxious scrutiny and found no public law error.  We therefore do not accept that this ground has any merit.

16.The applicant also complains that the judge did not allow him to state his case in the oral hearing which took place before the handing down of the CALL-1 Form.  We note that there was in fact no hearing for the applicant’s application for leave for judicial review.  The applicant was not given an oral hearing for his application for leave for judicial review because he did not request for one in his Form 86.  RHC Order 53 r 3(3) provides that the judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application.  The applicant did not identify the argument he wished to make before the judge or any prejudice he suffered.  This ground is without merit.

17.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person, absent