IFTIKHAR MUHAMMAD v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 171/2020

[2020] HKCA 910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 171 OF 2020

(ON APPEAL FROM HCAL 762 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL-1 dated 4 June 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1035. 

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 24 April 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 20 November 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  By a letter dated 12 June 2020, the applicant gave consent to the appeal being heard by a two-member court. 

A.  Background

4.  The applicant is a national of Pakistan.  He entered Hong Kong on 26 January 2016 illegally and surrendered to the Immigration Department on 1 February 2016.  He lodged a non-refoulement claim on 12 August 2016.  He was arrested on 28 March 2017 for taking employment while being a person of whom a removal order was in force and was sentenced to 15-month imprisonment. 

5.  The details of the applicant’s claim and his personal background were set out in paragraphs 5-6 of the Director’s Decision, and paragraphs 24-38 of the Board’s Decision.

6.  Briefly stated, the applicant claimed that he would be harmed or killed by (1) the active supporters of Muttahida Qaumi Movement (“MQM”) because he refused to participate in the illegal activities and (2) the radicals of the Sunni Movement (“SM”) because he was a member of MQM.  The applicant claimed that he befriended a member of MQM named Moeen after Moeen helped him solve the money extortion from other MQM members.  He eventually joined MQM in June 2012.  However, shortly after he joined MQM, the conflicts between MQM and SM broke out and the applicant was threatened by members of SM.  In March 2015, the applicant was asked by Moeen to participate in more activities of MQM but he was reluctant to do so.  He feared that the members of MQM would harm him if they found out he did not want to get involved.  Later, he was told by his family that MQM was looking for him and he fled to Hong Kong out of fear.

B.  The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3] and the BOR2 risk[4] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 6 April 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

9.  Although the Board accepted that the applicant’s story as to the conflicts between MQM and SM was adequately consistent, it found the applicant’s case as to their intentions to kill him unreliable and suspicious.  It found that there was no evidence in relation to any injuries suffered by the applicant or any information suggesting that the MQM supporters intended to kill him (paragraphs 41-44 of the Board’s Decision).  Further, after assessing the relevant country of origin information, the Board found that there was no report or evidence that the Pakistani Government would fail to discharge its duties or tolerate unlawful activities committed by individuals or members of political parties.  Thus, state protection was available to the applicant (paragraphs 45-60 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.  

C.  The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 2 May 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision. The grounds of review were summarized by the Deputy Judge at paragraph 12 of the Deputy Judge’s Decision as follows:

“12. On 2 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director failed to take into account or to give sufficient weight to the fact that the Applicant was in genuine fear that the police and the government would not be able to protect him from MQM’s threats due to corruptions before reaching his decision in rejecting the Applicant’s claim;

(2) that the Director failed to take proper account or give sufficient weight that the police or authorities in Pakistan would not assist or protect him in his consideration of his claim;

(3) that the Director’s decision that the Pakistani government has taken practical steps to monitor the conduct of its police and to improve its effectiveness was mere speculation as according to reliable COI the corruption and incompetency of the police are still extremely serious;

(4) that the Adjudicator failed to apply high standards of fairness required to assess the Applicant’s claim since he was legally unrepresented;

(5) that the Adjudicator erred in law in the same way as the Director and acted indifferently in simply in agreement with the Director’s decision in dismissing his appeal;

(6) that the Adjudicator’s decision that the Pakistani government has taken practical steps to monitor and improve the effectiveness of the police was similarly speculation unsupported by reliable COI; and

(7)    that the Adjudicator failed to make sufficient enquiry before concluding that the extent and nature of the injuries suffered by the Applicant failed to attain a minimum level of severity without advising the Applicant to obtain medical report or evidence from the Pakistani government.”

11.  The Deputy Judge heard the applicant’s leave application on 22 May 2019. During the hearing, an interpreter was arranged for the applicant.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 13-18 of the Deputy Judge’s Decision:

“13. These are however mainly 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 or the Adjudicator fail to take into account or place sufficient in the relevant COI as to the steps taken by the government in monitoring and improving the conduct and effectiveness of its police, or how did they fail to apply high standards of fairness or to make sufficient enquiry in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I am unable to find any basis or merits in any of them or that they are reasonably arguable for his intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicant’s case, as noted above that in none of his proposed grounds was he able to clearly or properly identify any public law error or procedural unfairness in either decision of the Director or the Board, and in the absence of which I do not see any prospect of success in his intended application.

16. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17. 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.

18. 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.”

D.  Grounds for appeal

12.  The applicant filed the Notice of Appeal dated 12 June 2020 to appeal the Deputy Judge’s Decision.  He simply stated that he was not satisfied with the Deputy Judge’s Decision.  He said that these decisions were far from facts and reality as well as lacked of transparency. 

13.  Pursuant to the directions of Registrar of Civil Appeals dated 29 July 2020, the applicant filed his skeleton submissions on 15 September 2020. In that, he repeated his personal background and his claim.  He also claimed that he was not satisfied with the Board’s Decision as it ignored many things that were related to his case.  He went on to repeat that the actual situation in his home country was dangerous for him to return.  Other than that, he did not identify any errors in the Deputy Judge’s Decision.

14.  At this hearing, the applicant confirmed that he had nothing further to add to what had already been set out in the Notice of Appeal and the written submission in support of this appeal.

E.  Discussion

15.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

16.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  Third, 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

21.  As mentioned, the applicant did not identify any errors with sufficient particularities in the Deputy Judge’s Decision.  His allegations that the Board ignored material facts, that the decisions lacked transparency and that the facts taken into account in the decisions were different from the actual situations are all bare assertions without any evidential support.  These are clearly not viable grounds of appeal.  On this basis alone, we will dismiss this application. 

22.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

23.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.