RE HUSSAIN MUSTANSAR

CACV 631/2020

[2021] HKCA 1369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 631 OF 2020

(ON APPEAL FROM HCAL NO. 846 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)  :

I. Leave to appeal to the Court of Final Appeal

1.  On 23 July 2021, this Court (Cheung and Yuen JJA)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 26 November 2020 in which he refused to grant leave to the applicant to apply for judicial review.

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.

3.  The applicant now applies, by a notice of motion filed on 29 July 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in his notice of motion that :

‘ I am the applicant here in the order give to the Court, There is some error in my decision maker just relied on information and my previous facts which was favor on reject my claim. Actual life occur different sitution. I have life Thread in my home Country.

I have requested to the Court that please provide me a legal represented.  I will be very thankful to The Court that Consider my request and make the decision on my favour.’

4.  The Registrar of Civil Appeal’s directions of 29 July 2021 was counter-signed by the applicant acknowledging receipt.  Those directions indicated that written submissions were to be lodged on or before 12 August 2021.  The applicant has not provided his written submissions despite the lapse of the stipulated deadline.

II.  Legal principles

5.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (‘Ordinance’)  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.

III.  Our view

6.  The matters stated by the applicant in his notice of motion 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 Ordinance.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion. 

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

IV.  Disposition

8.  For these reasons, the notice of motion dated 29 July 2021 is dismissed.

Applicant, unrepresented, acting in person

CACV 631/2020

[2021] HKCA 1060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 631 OF 2020

(ON APPEAL FROM HCAL NO. 846 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 Bruno Chan dated 26 November 2020 who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

1.2  According to the written confirmation of the applicant dated 2 December 2020, he consented for this application to be dealt with on paper without an oral hearing.  Accordingly we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of Pakistan.  He entered Hong Kong illegally and was arrested in March 2015.  He then raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by his uncle due to family disputes over a piece of land in their home district.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [5] of the CALL-1 Form.

3)  The Director’s Decisions

3.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 13 September 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.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board on 5 September 2017.  After a hearing held on 22 February 2018, the Board dismissed the applicant’s appeal on 14 May 2018.

4.2  The Board found that the applicant’s unwillingness to discuss his claims at the hearing carried weight.  The Board was not persuaded that the alleged land dispute occurred.  The applicant’s claim that he had been brought before a Court and remanded before being released on bail implausible since he was able to exit Pakistan with his passport in his own name.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation.  He later lodged his written submissions.  The applicant stated that he lacked legal representation before the Board.  He further stated various grounds, namely, that his claims were not considered properly, torture existed in Pakistan although it might not be visible, he would not have left Pakistan if there was no risk and the Board’s decision was unfair and Wednesbury unreasonable.

5.2  The Judge held that the high standard of fairness does not guarantee a right to legal representation at all stages of the proceedings.  He held that the applicant’s grounds were broad and vague without specifics or elaboration as to how they relate to his case.  The Board rejected the applicant’s case mainly due to his lack of credibility.  The Judge could not find any legal error or procedural unfairness in the Board’s decision.   

6)  Grounds of appeal

6.1  The applicant stated in his notice of appeal that there are still serious threats in his home country and therefore he cannot go back.

6.2  In the applicant’s written submissions, the applicant cited various case authorities and section 37 ZT of the Immigration Ordinance that are used in non-refoulement claim proceedings without elaborating on how they relate to the particular circumstances of his case.

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.  The Judge had provided proper reasons for his refusal to grant leave.

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

Applicant, unrepresented, acting in person