Re Shakeel Muhammad

CACV 358/2022, [2023] HKCA 529

On Appeal From [2022] HKCFI 2500

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 358 OF 2022

(ON APPEAL FROM HCAL NO. 2242 OF 2018)

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J U D G M E N T

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

I.  The appeal

1.This is an appeal against the decision (the ‘Decision’)  of Deputy High Court Judge K W Lung of 23 August 2022.  The Judge refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’)  dated 5 October 2018, which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’)  dated 24 January 2017 rejecting his claim for non‑refoulement protection under all applicable grounds except torture claim (determined on 10 January 2014).

2.The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.The applicant is a national of Pakistan.  The applicant entered Hong Kong illegally and made a torture claim in October 2009.  The torture claim was rejected in January 2014.  In April 2016 he completed a supplementary claim form where he sought non‑refoulement protection on all applicable grounds other than torture.  His non‑refoulement claim was on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle Walayat Khan due to a land dispute.

4.The background facts have been summarised by the Judge at [5] of the Decision.

III.  The Director’s Decision

5.The Director’s decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against persecution except torture (the ‘Director’s Decision’).

IV.  The Board’s Decision

6.After a hearing held on 29 March 2018, the Board dismissed the applicant’s appeal (the ‘Board’s Decision’).

7.The applicant attending the hearing before the Board and was assisted by an interpreter.  Although the applicant was comfortable with answering some questions in English and presented himself to be an intelligent, thoughtful and confident witness, the Board found many notable discrepancies in his evidence.  The Board held that the applicant’s story was implausible and unreal.  It accepted some of the applicant’s basic information but the alleged threats to kill by his uncle did not appear real.  It held that it defies logic that if the applicant’s uncle threatened to kill the entire family, only the applicant left but his parents stayed behind.  It was not satisfied that the applicant faced a real risk of harm if he is returned to Pakistan.  No credence could be attached to the applicant’s evidence.

V.  Decision of the Judge

8.The applicant filed a Form 86 and a supporting affirmation on 15 October 2018, but did not identify any ground for seeking relief in either document.

9.The applicant did not request an oral hearing.  The Judge dealt with his application on paper.

10.The Judge held that the applicant’s complaints that he was not satisfied with the Board’s decision or that his life was still in danger were not valid grounds to challenge the Board’s decision. 

11.The Judge was not satisfied that there was any real prospect of success in the applicant’s intended application for judicial review and accordingly refused his leave application.

VI.  Grounds of appeal

12.In the Notice of Appeal filed on 1 September 2022, the applicant stated that ‘The High Court decision is wrong.  So I do not agree with him.  I want to appeal.’

13.In the written submissions filed on 15 September 2022, the applicant made further vague complaints about his enemy being powerful and bribed the police, or where his enemy was a ‘monster’ and he was an ‘ant’, without any particulars or elaborations.  He also made some vague and unsubstantiated assertions about the Director and the Board that ‘they made many many mistake.’ 

VII.  Our view

14.In our view, the applicant’s submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing his application.

15.We 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 Country of Origin Information 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.

16.In our view, the applicant’s appeal is devoid of any merits.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person