RE ASID IQBAL

CACV 480/2018

[2019] HKCA 28

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 480 OF 2018

(ON APPEAL FROM HCAL 28/2018)

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JUDGMENT

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 14 September 2018 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of Pakistan.  He alleged that he entered Hong Kong from the Mainland China illegally on 20 August 2007.  He was arrested by the police on 21 January 2008 and lodged a torture claim on 28 February 2008.  Upon the commencement of the unified screening mechanism on 3 March 2014, the applicant’s torture claim was taken to be a non-refoulement claim.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or even killed by the supporters of the Pakistan People’s Party and the family members of a fellow villager because he was suspected to be involved in the murder of the villager.  The applicant further claimed that, if he returned to Pakistan, he would be arrested by the police for jumping bail.  The facts of this case were summarized by the Judge in [2] – [5] of Form CALL-1 (published as [2018] HKCFI 2048).

4.  By two notices of decision dated 1 September 2015 and 4 September 2017, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds and rejected the applicant’s claim for non-refoulement protection in Hong Kong.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]; and the latter the BOR 2 risk[4].

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of Non-Refoulement Claims Petition Office (“the Board”).  An oral hearing was held on 14 November 2017.  With the benefit of such hearing, the Board had serious doubt regarding the general credibility of the applicant.  The Board further found that the applicant had fabricated the entire basis of his claim.  Accordingly, the Board was not satisfied that there was a real risk that the applicant would suffer ill-treatment of any sort if he refouled to Pakistan.  The Board dismissed the applicant's appeal/petition on 29 December 2017.

The Judge’s decision

6.  The applicant filed his Form 86 on 5 January 2018, seeking leave to apply for judicial review against both decisions of the Director and the Board.  In Enclosure 2 annexed to the Form 86, the applicant advanced the following grounds for seeking relief:

(a) The Director failed to appreciate or give the proper weight to the presence of state acquiescence in the applicant’s case;

(b) The Director failed to consider or give sufficient weight to the relevant country of origin information (“COI”) that indicated the ineffectiveness, corruption, and incompetency of the Pakistani police;

(c) The Director failed to attain the high standard of fairness as required by law; and

(d) The Board failed to make sufficient enquiry before finalizing its decision and failed to give a sufficient chance to the applicant to arrange evidence in support of his non-refoulement claim and for his appeal.

7.  In his affirmation in support of his leave application, the applicant exhibited various documents relating to his case, including excerpts relating to human rights situation in Pakistan, India, Bangladesh from the Amnesty International Report 2016/2017 and an article entitled “This Crooked System – Police Abuse and Reform in Pakistan” issued by Human Rights Watch.

8.  Upon the applicant’s request, an oral hearing was fixed for 17 August 2018.  However, the applicant elected not to say anything during the oral hearing.  After giving due consideration to the materials placed before the court, the Judge refused to grant the applicant leave to apply for judicial review.  The Judge’s reasons in refusing leave were set out in [12] – [16] of Form CALL-1 as follows:

“ 12. [The applicant’s grounds for seeking relief] are however mostly just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the director or the adjudicator had erred in their decisions, or in what way did the Director fail to take into account of relevant COI or being selective or improperly relied on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or fail to give him sufficient opportunity to provide evidence in support of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13. As to the two additional COI of reports on police corruptions and violations of human rights in Pakistan exhibited to his supporting affirmation of the same date which were never put before the Director or the Board, and of which again the applicant never elaborated as to how they applied to his claim, as the mere existence of a constant pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati and Maria Zubair [2018] HKCA 461.

14. The fact is that the applicant’s claim was rejected by both the Director and the Board essentially on his credibility based on their evaluation of all the evidence available before them and which they were entitled to do, as it has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, for which the court will not usurp their role as primary decision makers, and in the absence of any legal error or procedural unfairness or irrationality being identified by the applicant in the decisions, judicial review is not to be treated as an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The appeal

9.  On 27 September 2018, the applicant filed a notice of appeal.  In it, the applicant repeated the same grounds for seeking relief as he had advanced in Enclosure 2 to his Form 86.

10.  By a letter dated 27 September 2018, the applicant gave consent that this appeal be heard before a two-judge court.

11.  The applicant lodged his Skeleton Submission on 5 December 2018.  In his Skeleton Submission, the applicant said because of the lack of language assistance he was unable to prove his case to the requisite extent.  He also submitted that the Director failed to attain high standards of fairness by failing to refer to the Duty Lawyer Service for the assessment of his BOR 2 risk.

12.  We heard the appeal on 3 January 2019.

General principles

13.  Before we address the merits of this appeal, we would highlight the following general propositions that this Court has adopted in determining an appeal in non-refoulement cases:

(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 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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(5) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  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.

Discussion

14.  In Re Moshsin Ali [2018] HKCA 549, this Court held that the decision of the Director is not susceptible to judicial review once a non-refoulement claim has pursued an appeal to the Board.  Since the applicant had already appealed to the Board against the decisions of the Director, the court would only focus on the decision of the Board in the application for leave to apply for judicial review.

15.  In the present case, the Board rejected the applicant’s claim based on its adverse finding on the applicant’s credibility.  After having rigorous examination and anxious scrutiny, the Judge found no reasonably arguable basis to challenge the findings of the Board.

16.  In his notice of appeal, the applicant merely regurgitates the grounds that had already been considered, and duly rejected, by the Judge.  He failed to pinpoint any error in the Judge’s analysis or demonstrate any ground that justifies a reversal of the Judge’s decision. 

17.  In our view, the Judge’s analysis in [14] of Form CALL-1 is entirely correct and is in line with the general propositions as we have expounded above. 

18.  Furthermore, the applicant had never applied to the Board for adducing further information to support his case.  In those circumstances, there is no basis to criticize the Board for its alleged failure to give sufficient chance for the applicant to do so. 

19.  The applicant did not put forth any argument with regard to the lack of language assistance before the Judge.  As explained above, this Court will not generally entertain new arguments that are fact-and-evidence sensitive and for which leave had not been sought within time. 

20.  In any event, this argument is not reasonably arguable.  The high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].  In the context of the present appeal, we are not satisfied that language assistance could have improved his case on BOR 2 since, with such assistance (which he obviously had as all the documents signed and lodged by him with the court were written in English), he did not produce anything to further support his BOR 2 claim.

21.  The Director did not have any obligation to refer the BOR 2 claim to the Duty Lawyer Service. Instead, it was up to the applicant to take the matter up with the Duty Lawyer who had acted for him in presenting his case to the Director.

22.  Further, on the facts of the present case, given the Board’s rejection of his claim on credibility, we cannot see any basis of any separate BOR 2 claim by the applicant. 

23.  Having considered the materials available before us, as well as the applicant’s Skeleton Submission, we agree with the judge that leave to apply for judicial review should be refused.

24.  For these reasons, we dismiss the appeal.