USMAN MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 397 /2019

[2019] HKCA 1404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 397 OF 2019

(ON APPEAL FROM HCAL NO 1194 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung on 20 August 2019^[1] refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Pakistan of 26 years of age.  He came to Hong Kong illegally on 14 August 2016 and was arrested by the police on the same day.  He raised a non-refoulement claim on 19 August 2016.  He claimed that he would be harmed or killed by his neighbouring family due to a land dispute.

The Director’s decision

3.  By a Notice of Decision dated 30 December 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5].  

4.  The Director did not accept there is real and substantial risk that the applicant will be harmed or killed by the neighbouring family upon his return to Pakistan because of the absence or low intensity and frequency of past ill-treatment from the neighbouring family. Besides, according to the applicant’s own evidence, there is no indication showing that the state of Pakistan was involved in, indifferent to or had provided any form of encouragement to the neighbouring family in threatening or harming him. The Director also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Hence, the non-refoulement application was rejected by the Director. 

The Board’s decision

5.  The applicant attended the hearing of the appeal against the Director’s decision on 29 May 2018.  The Board found that the applicant’s evidence was unreliable and questionable and that he had not been ill-treated or threatened in the past.  The Board also assessed there is not a real chance that he will be harmed or otherwise ill-treated if he is refouled. Therefore, the Board rejected the appeal on 11 June 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and supporting affirmation on 25 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

7.  The judge considered that the applicant is not entitled to apply for judicial review of the Director’s decision without exceptional circumstances.  Since the applicant has not set out any exceptional circumstances, his application for leave for judicial review of the Director’s decision was dismissed by the judge. 

8.  The Judge held that the applicant’s grounds against the Board’s decision failed.  The application for leave to apply for judicial review was refused by the judge on 20 August 2019 as the applicant has no reasonable prospect of success in the intended judicial review.

The grounds of appeal

9.  The applicant filed a Notice of Appeal against the decision of the judge on 29 August 2019. The grounds of appeal stated therein may be summarized as follows:

(1)  The judge erred in dismissing the applicant’s application for leave for judicial review against the Director’s decision (Ground 1).

(2)  There is a lack of transparency in the process as the adjudicator could not have made a determination without first understanding the content of the newspaper cutting (Ground 2).

(3)  The judge erred in failing to recognize and address the significance of the lack of language assistance to the applicant (Ground 3).

10.  The above grounds 2 and 3 were raised by the applicant in the original leave application. They were not mentioned in his Form 86 but were mentioned in his supporting affirmation^[6].

Legal Principles

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.  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 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 the decision of the Board.

13.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

Ground 1

14.  As the decision by the Board has superseded the decision of the immigration officer and represents the final decision on the claim at the end of its processing, the judge is correct in deciding that the applicant cannot seek leave for judicial review against the Director’s decision, which is consistent with the case of Re Moshsin Ali^[7].  The court will only intervene by way of judicial review where there are errors of law or procedural unfairness or irrationality in the decision of the Board.  This ground has no merits.

Ground 2

15.  The applicant contended that there is no information to show that the adjudicator was aware of the content of the newspaper cutting as it was not in English^[8]. He submitted before the judge at the hearing on 20 August 2019 that he wanted to submit the newspaper relating to the murder of his cousin to the adjudicator but the adjudicator thought that it was unnecessary^[9].

16.  As explained in paragraph 72 of the Board’s decision, the adjudicator considered that the documentary evidence relating to the death of the applicant’s cousin could not go to prove that the applicant himself was personally threatened.  The adjudicator was not persuaded on the totality of the evidence that the documents submitted by the applicant in this regard were genuine or reliable.  He was unable to attach any weight to those documents or to the further documents submitted by the applicant at the hearing on attack incidents in Pakistan not related to the applicant. The conclusion of the adjudicator is justified.  Therefore, this ground is without merits.

Ground 3

17.  The applicant submitted that the judge erred in failing to recognize and address the significance of the lack of language assistance. The judge did not deal with this ground in his decision dated 20 August 2019.  The applicant also complained that the judgment of the judge in the Call 1 Form^[10] was not explained to him by a “qualified interpreter or translator”.

18.  The fact that the judge did not address this ground is immaterial and does not help the applicant if there is no substance in this ground.  In the present case, interpreter services were provided at the time when the applicant was assisted by duty lawyer and at the previous hearings.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658 at §12. 

19.  Furthermore, all the documents filed in court including the affirmation in support of the leave application, the notice of appeal and the skeleton submission lodged by the applicant were written in English.  This indicates that either the applicant is himself conversant with the English language or that he has access to language assistance of his own if needed.  The filing of the notice of appeal is also self-evident that the applicant’s right to seek further avenue of appeal has not been deprived of as alleged.

20.  Therefore, the ground relating to the lack of language assistance has no merit.

21.  In summary, the applicant has failed to show there are errors of law or procedural unfairness or irrationality in the decision of the Board.

22.  We dismiss the appeal as there is no merit in any of the grounds of appeal and no prospect of success in the intended application for judicial review. 

[1] [2019] HKCFI 2070

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[6] At §§11 to 12

[7] [2018] HKCA 549 at §45

[8] Notice of Appeal, §5; skeleton submissions, §7; and the record of hearing on 20 August 2019 before the judge.

[9] Record of hearing on 20 August 2019 before the judge.

[10] [2019] HKCFI 2070