Abbas Sikandar v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

CACV 352/2021

[2021] HKCA 1574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2021

(ON APPEAL FROM HCAL NO 2740 OF 2018)

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BETWEEN

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J U D G M E N T

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

1.This is an appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 6 July 2021 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 22 November 2018, which dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 28 March 2018.

BACKGROUND

2.The Applicant is a national of Pakistan.  He entered Hong Kong illegally on 25 November 2015 and surrendered to the Immigration Department on 5 April 2016.

3.In due course, he lodged a non-refoulement claim form on 27 February 2018 claiming that if refouled to Pakistan, he would be harmed or killed by Shia Muslims because he is a Sunni Muslim.  Details of the Applicant’s claim have been summarised by the Judge at §§5-10 of the CALL-1 Form.

4.By a Notice of Decision dated 28 March 2018, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk,[3] and persecution risk[4] (“the Director’s Decision”).

5.The Applicant lodged an appeal to the Board.  On 22 November 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board found that there were significant discrepancies between the Applicant’s written statements and his evidence at the oral hearing which undermined his credibility (see Form CALL-1 at §11). The Board concluded that there was no real risk that the Applicant would face any proscribed forms of harm should he return to Pakistan and the Applicant had failed to establish any applicable grounds for non-refoulement protection.

THE JUDGE’S DECISION

6.The Applicant then filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

7.The Judge found that the Applicant provided no ground for seeking relief.  His 3-page statement of grounds of judicial review annexed to the Form 86 contained a summary of the case, some statements of legal principles, and some complaints against an immigration officer (in addition to the contention that he had standing to make the application).  The Judge found that these were, at the highest, complaints against findings of fact made by the Board (§12).

8.Citing Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1), the Judge held that the function of the court in judicial review is not to re-assess the non-refoulement claim afresh and 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 (§13).

9.At the hearing dated 22 June 2021, the Applicant confirmed that there was no unfairness and nothing else that the Board should have taken into account.  His only complaint was that he thought the Board’s Decision was not fair (§14).

10.The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny, and concluded that there was no evidence showing any prospect of success in the Applicant’s intended application for judicial review (§15).

11.Accordingly, on 6 July 2021, the Judge refused the Applicant’s application for leave to apply for judicial review.

THIS APPEAL

12.In his Notice of Appeal dated 19 July 2021, the Applicant wrote that he was not satisfied with the “decision” because of the lack of transparency.  On the same date, the Applicant consented to the appeal being disposed of on paper without an oral hearing.

13.In the Applicant’s written submissions dated 27 July 2021, he stated that he was not satisfied with the Board’s Decision because “they ignored so many things which are related with my case”, and raised various general allegations about the situation in his home country.

DISCUSSION

14.In non-refoulement cases, the Court will not intervene by way of judicial review unless it is shown that there are errors of law, procedural unfairness, or irrationality in the decision of the Board.  The assessment of evidence, risk of harm, state protection, and viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1)).

15.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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

16.The Applicant has failed to identify any errors of law or failure by the Judge to take account of relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.

17.For the above reasons, the present appeal has no merits, and is dismissed.

The Applicant, unrepresented, acted in person