RE MUHAMMAD ASHRAF

CACV 332/2020

[2021] HKCA 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 332 OF 2020

(ON APPEAL FROM HCAL NO. 2585 OF 2018)

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D E C I S I O N

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

1)  Leave to appeal to Court of Final Appeal

1.1  On 19 March 2021, this Court (Cheung JA, B Chu and ST Poon JJ) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung given on 29 July 2020 in which he refused to grant leave to the applicant to apply for judicial review.

1.2  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment.  We will not repeat them here.

1.3  The applicant now applies, by a notice of motion filed on 29 March 2021, for leave to appeal against our judgment to the Court of Final Appeal.  We consider it is appropriate to deal with the application on paper notwithstanding the applicant’s request for an oral hearing.

1.4  The applicant stated in his notice of motion that there was some error in his case but without specifically stating the alleged error.  The applicant stated that the decision maker relied on information which was not in his favour.  He stated that the decision was biased.  There are no particulars or specificity in these broad assertions.

1.5  Further, the notice of motion had five pages of attachment.  The applicant repeated the factual matters that have been dealt with before the Board and the Director.  One particular point he mentioned was that if he was refouled back to Pakistan, it was unsafe as the coronavirus pandemic situation there is now out of control.

1.6  The applicant lodged his written submissions on 22 April 2021.  The applicant again repeated factual matters that have been dealt with before the Board and the Director.  The written submissions are 10-page-long with two pages of exhibits.  The first exhibit shows his marriage certificate which appears to indicate that the applicant is now married with a Hong Kong permanent resident.  The second exhibit provides a copy of his resident’s Hong Kong permanent identity card. The submission contained some glaring mistakes including the applicant’s statement that he ‘would be ill-treated by my husband’s creditor...’ which was not the basis of his claim below.

2)  Legal principles

2.  Under section 22(1)(b) of the HongKong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1  The matters stated by the applicant in his notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion or written submissions. 

3.2  Whether it is the coronavirus pandemic in Pakistan, or that the applicant is now married to a Hong Kong resident with permanent residency, this Court has repeatedly emphasized that factual and evidential matters are within the province of the Board and the Director, who are also the primary decision makers: see 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.

3.3  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.  For these reasons, the notice of motion dated 29 March 2021 is dismissed.

Applicant, unrepresented, acting in person

CACV 332/2020

[2021] HKCA 364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 332 OF 2020

(ON APPEAL FROM HCAL NO. 2585 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge K. W. Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 29 July 2020.

1.2  This appeal was scheduled to be heard on 26 January 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 16 November 2020, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of Pakistan.  He had repeatedly entered Hong Kong using different passports with different names.  He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by the Shia community.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [4] to [5] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 28 November 2017.  The 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 torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 29 June 2018, the Board dismissed the applicant’s appeal against the Director’s Decision on 31 October 2018.

4.2  The Board found that there were significant discrepancies between what the applicant had written in his application and what he presented during the hearing.  It found that he was not a witness of truth.  The applicant delayed in seeking non-refoulement protection.  The Board found that he has fabricated his story.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation.  He set out various grounds for review including :

(1)  Procedural impropriety in failing to consider country of origin information of Pakistan;

(2)  Irregularity in failing to give weight to relevant materials;

(3)  Irrationality in failing to consider consistent system of human rights violation;

(4)  No reasonable basis for rejecting his evidence;

(5)  Failing to consider state acquiescence; and

(6)  No proper basis for assessing internal relocation.

5.2  The Judge held that the applicant appeared before him and confirmed that he was free to express himself before the Adjudicator of the Board.  It was held that the grounds stated by the applicant did not assist him without any evidence or particulars in support. 

6)  Grounds of appeal

6.  Doing the best we can to understand the applicant’s grounds of appeal, he said that the Court erred in relying on the Director’s Decision.  He claimed that the Court has erred in finding state protection was available.  He complained that he was not legally represented during the hearing.  He alleged that BOR 2 should be assessed separately.

7)  Our view

7.1  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 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 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.

7.2  In our view there is no merit in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

7.3  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.

Applicant, unrepresented, acting in person