Case Detail

CACV 290/2020

[2021] HKCA 428

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)

____________________

BETWEEN
	SHAHZAD KHURRAM	Applicant (Appellant)
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	1^st Putative Respondent
	DIRECTOR OF IMMIGRATION	2^nd Putative Respondent

____________________

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

Date of Judgment: 1 April 2021

________________

JUDGMENT

________________

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

1. On 29 January 2021, this Court (Cheung JA, B Chu and S T Poon JJ) handed down our judgment^{^[1]} (the “Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 July 2020 refusing leave to apply for judicial review. The applicant had sought judicial review of the decision of the Torture Claims Appeal Board dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2. The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here.

3. On 11 February 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.

4. Having considered the applicant’s notice of motion, we see no reason to depart from the usual practice of determining applications of this kind on paper without a hearing.

5. As best as we can understand from the applicant’s handwriting, the applicant stated in his notice of motion that he would like to reject and review the Board’s decision as it has disregarded his dangerous situation. He stated that the Board did not consider cultural specifics of Pakistan. These are all bare assertions of the applicant without any particulars as to how they relate to the applicant’s case.

6. Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. Here, the applicant’s notice of motion does not properly identify any error in our judgment, let alone any question of great general or public importance. The hurdle for obtaining leave to appeal to the Court of Final Appeal is not met. Nor is there any reason for leave to be given under the “otherwise” ground in section 22(1)(b).

7. Accordingly, we dismiss the applicant’s notice of motion.

(Peter Cheung)	(Bebe Pui Ying Chu)	(S T Poon)
Justice of Appeal	Judge of the	Judge of the
	Court of First Instance	Court of First Instance

The applicant, unrepresented, acted in person.

[1][2021] HKCA 127

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)

________________________

BETWEEN

	SHAHZAD KHURRAM	Applicant (Appellant)
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	1^st Putative Respondent
	DIRECTOR OF IMMIGRATION	2^nd Putative Respondent

________________________

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

________________________

J U D G M E N T

________________________

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

2.1 The 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.

2.2 The 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”).

2.3 The 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

4.1 The 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”).

4.2 The 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

5.1 The 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.

5.2 The 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

6.1 The 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.

6.2 In 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.

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

7) Our view

7.1 We 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.

7.2 It 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.

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

(Peter Cheung)	(Bebe Pui Ying Chu)	(S T Poon)
Justice of Appeal	Judge of the Court of First Instance	Judge of the Court of First Instance

The applicant, unrepresented, appearing in person

[1] [2020] HKCFI 183

SHAHZAD KHURRAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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