IJAZ AHSAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 402 /2019

[2019] HKCA 1399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 402 OF 2019

(ON APPEAL FROM HCAL NO 819 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 Josiah Lam on 22 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. We deal with this appeal on paper without an oral hearing for reasons as mentioned below.

2.  The applicant is a national of Pakistan of 24 years old.  He entered Hong Kong illegally on 18 February 2016.  On the following day, he surrendered to the Immigration Department and he lodged a non‑refoulement claim on 5 August 2016.  He claimed that he would be harmed or killed by his Shia and Pakistan Muslim League (Nawaz) enemies upon his return to Pakistan.

The Director’s decision

3.  By a Notice of Decision dated 7 June 2017, 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 held that the low intensity and low frequency of the past ill-treatment from the applicant’s enemies are indicative of a small future risk of harm upon his return to Pakistan.  In particular, according to the applicant’s own evidence, no serious physical harm or injury was inflicted on him at all.  The Director also considered that the availability of reasonable state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, 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 11 December 2017.  The Board found that the applicant is not a witness of truth and his claims regarding his experiences in Pakistan are not credible.  As the applicant failed to make out his non-refoulement protection claim on any of the applicable grounds, the Board rejected the appeal on 29 March 2018 accordingly. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 10 May 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 heard the leave application on 31 August 2018.  He held that the applicant’s complaints were not reasonably arguable for reasons stated in paragraphs 31 to 34 of his decision dated 22 August 2019.  As the applicant has no realistic prospect of success in the sought judicial review, the leave application was refused by the judge.

The grounds of appeal

8.  The applicant attached his grounds of appeal to the Notice of Appeal filed on 2 September 2019. They may be summarized as follows:

(1) His life is not safe in his motherland.  The Shia people assaulted him and threatened to kill him.  He did not report the matter to the police as the chairman of Shia in that area has close connection with the police;

(2) The Board neglected the substantial ground of his claim.  The Board just refused his appeal without any reasonable ground.  The decision is biased and adopted a formula approach and which is unlikely to have assessed his danger of life fairly;

(3) The Director and the adjudicator failed to conduct inquiries from reliable sources and did not fully study the applicant’s case; and

(4) Relocation is practically impossible as the state protection that fights against terrorism is in fact non-existent.

9.  Similar grounds related to the above grounds 1, 3 and 4 were also raised in the previous leave application.

Non-compliance of unless order

10.  This appeal was scheduled to be heard on 10 December 2019.  Directions were given by the Registrar of Civil Appeals on 26 September 2019 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.  

11.  The applicant failed to lodge skeleton argument by the prescribed time (ie on or before 12 November 2019).  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  The court informed the applicant by letter dated 19 November 2019 that the hearing date of 10 December 2019 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

12.  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.

13.  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 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.

14.  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.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

15.  In the present case, the Board found that the applicant had fabricated his claims based on a number of significant inconsistencies and discrepancies between his written representations and his oral evidence during the hearing. The applicant had not provided any valid arguments with reliable evidence in support to refute such findings of the Board. 

16.  The applicant also failed to show 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. 

17.  For the above reasons, there is no merit in the appeal and no prospect of success in the intended application for judicial review.  Therefore, the appeal should be dismissed.