Qaisar Hussain Shah v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 230/2021

[2021] HKCA 1359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 230 OF 2021

(ON APPEAL FROM HCAL NO 2634 OF 2018)

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BETWEEN

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Before:  Hon Yuen and Chow JJA in Court

Date of Judgment:  21 September 2021

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.On 28 April 2021, DHCJ K.W. Lung (“the Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 14 November 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 26 October 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.On 10 May 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

3.The Court gave directions on 13 July 2021 for the applicant to lodge written submissions on or before 16 August 2021.  He failed to do so.  The Court further directed that in the event the applicant fails to lodge his written submissions, he shall be deemed to waive his right to have an oral hearing of his appeal and elect to have his appeal disposed of on paper.  As it is appropriate to do so, we proceeded to consider this appeal on the papers.

Background

4.The Applicant is a national of Pakistan. He came to Hong Kong illegally on 23 August 2015 and was arrested by police on 24 August 2015. He lodged a non-refoulement claim with the Immigration Department on 27 August 2015 on the basis that if he were to return to Pakistan, he would be harmed or killed by Shah Israr Hussain (“Israr”)  and his associates due to (i)  his (the applicant’s)  involvement in the education and choice of religion of his nephew, the son of his brother Zia (“Zia”)  and Shazia Bibi (“Shazia”), Israr’s sister; and (ii)  his refusal to drop his allegation in a court case that Israr had participated in Zia’s murder.  The applicant claims that he belongs to the Sunni sect and Israr belongs to the Shia sect.  The factual background of this case was succinctly summarized by the Judge in [6] of the Form CALL-1 ([2021] HKCFI 1106)

5.By a Notice of Decision dated 26 October 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against him.

6.The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 4 September 2018.  For reasons given in its decision of 14 November 2018, the Board dismissed the appeal.  After due consideration of the applicant’s evidence in a very detailed Decision, the Board found significant inconsistencies between the information provided in his non-refoulement claim form and his oral evidence given at the Board’s hearing, and when the Board pointed out the anomalies to him, he could not offer any satisfactory explanation.[5]   The Board rejected his case that he and his family had been attacked or intimidated or targeted by Israr or his associates for any of the claimed reasons and was not satisfied that he would face a real chance of harm of any kind if refouled.[6]  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

7.On 22 November 2018 the applicant filed his Form 86 for leave to apply for judicial review with only the Director named as proposed respondent, but the decision in respect of which relief was sought was said to be “4 Sep 2018”, which was the date of the hearing before the Board.  In his supporting affirmation, he said that his life is still in danger in his home country and he sought to review the decision attached as “Exhibit A” which is the Board’s decision.  The Judge accordingly ordered that the Form 86 be amended to the effect that the Board is the proposed respondent and the Director is the interested party.   

8.The applicant did not provide any ground for his intended challenge nor requested an oral hearing.  The Judge disposed of the application on paper.  In his decision dated 28 April 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [13] – [17] of the Form CALL-1 as follows:

“13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

15. His ground in support of this application does not assist his application.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to this Court

9.On 10 May 2021, the applicant filed a Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following grounds of appeal:

“I am disagree with the decision of authorities. The Court and the authorities have been negligent and failed to perform a standard duty of care that is specifically targeted as Non-Refoulement claimants like me. I am not the only one who does not understand English and the Court procedure and yet has been discriminated against and was put at a disadvantage because of this.”

Legal principles

10.In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(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 on appeal, which operates as a re-hearing, 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 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.  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.

(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, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

11.The grounds of appeal set out in the Notice of Appeal and the written submissions are vague and general assertions without particulars or elaboration, and they are thus not valid grounds of appeal: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244. 

12.The applicant’s complaint that he does not understand English and that he has been put in a disadvantageous position is a new ground as he did not raise this before the Judge.  It is not permissible for him to raise it now.  It is noted that the applicant was able to prepare all the court documents in English which suggested that he is either proficient in English or that he has access to such language assistance if needed. Accordingly, we see no merit in this ground.

13.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

14.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, acting in person