RE ALI ZULFIQAR

CACV 343/2018

[2018] HKCA 873

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 343 OF 2018

(ON APPEAL FROM HCAL 842 /2017)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 20 July 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 1 December 2016 and 27 October 2017 dismissing the applicant’s appeals against the decisions of the Director of Immigration dated 9 February 2015 and 9 March 2017 rejecting the applicant’s non-refoulement claims.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 27 April 2009 illegally and was arrested by the police on same day.  He lodged a non-refoulement claim on 1 May 2009. 

3.  The applicant’s claim was based on the allegation that he was the target of honour killing.  The details of the applicant’s claim have been summarised by the judge at [2] to [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 9 February 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 December 2015, the Board dismissed the appeal on 1 December 2016 (“Board’s Decision”). 

6.  By a Notice of Further Decision dated 9 March 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

7.  On 27 October 2017, the Board dismissed the applicant’s appeal against the Further Decision without an oral hearing.

8.  The Board was satisfied at [8] that the threat of harm was not instigated by any state agent and at [14] that internal relocation would be viable.  At [33] of the Board’s Decision dated 1 December 2016, the Board also found that the applicant’s case was not credible although it did so only for completeness and it clear at [30] that the appeal failed independently of this ground.

The deputy judge’s decision

9.  The applicant filed a Form 86 on 3 November 2017.  The Form 86 contained no ground for seeking relief. 

10.  In the affirmation in support of the leave application dated 3 November 2017, the applicant advanced various grounds for judicial review which are summarised below:

(1)   lack of legal representation in his appeal before the Board;

(2)   lack of language assistance for not providing him with the service of an interpreter to assist him in dealing with his claim relevant to BOR 2 risk including submitting additional facts for BOR 2 risk at the invitation of the Director;

(3)   wrongful exercise of case management power on the part of the Director for improper reliance on COI in his assessment of the effectiveness of state protection available in Pakistan; and

(4)   lack of fair hearing for considering and rejecting his claim under BOR 2 risk without providing him with any oral hearing.   

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [18] of the CALL-1 Form:

“11. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

12. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13. His complaint under grounds (2) and (4) can be considered together as they relate to the right to have the assistance of interpreter and to a further oral hearing for his claim under BOR 2 risk. For the former I am of the firm view that the same principle in relation to the right to legal representation as referred to above applies as well to the service of interpreter. In any event even up to now in his leave application when he was assisted by an interpreter at his oral hearing before me, the applicant did not submit any additional facts relevant to BOR 2 risk.

14. Similarly there is no absolute right to an oral hearing, as held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 and the question must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations. In the absence of any additional facts submitted by the applicant, both the Director and the adjudicator were entitled to consider his claim under BOR 2 risk on the facts and evidence available before them without a further oral hearing, nor did he as noted above do so at the hearing before me. In the circumstances I do not find any procedural unfairness in their consideration of his claim under BOR 2 risk by the Director and the Board without a further oral hearing.

15. As for his complaint under ground (3) of improper reliance by the Director of COI in his assessment of the effectiveness of state protection in Pakistan, the applicant did not provide any particulars or specifics or elaboration of this complaint, and having examined those COI listed and referred to by the Director in paragraph 18 of his decision, I do not find any basis or merits in this complaint of the applicant.

16. The fact is that it has been established by both the director and the Board in their decisions that the risk of harm from those brothers of TH is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to other part of Pakistan, there is simply no justification for affording 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.”

Grounds for appeal

12.  In the Notice of Appeal dated 26 July 2018 the applicant advanced the following grounds of appeal:

(1)   the judge erred in failing to adopt a proper structured approach to credibility.  There was no indication that the judge adopted a reasoned and considered approach in evaluating the material matters (see AF(Jamaica) v Secretary of State for Home Department [2009] EWCA Civ 240);

(2)   the judge failed to take into account the fact that honour killing is respected in the Pakistani society.  He will not be afforded any state protection from honour killing.

13.  In his skeleton submissions dated 22 October 2018, the applicant submitted that:

(1)   he was not offered any advice as to the implication of not giving evidence before the Board;

(2)   the Board erred in finding that the applicant’s evidence was a bare assertion;

(3)   the high standard of fairness requires the court to consider honour killing as a big problem for the applicant.

14.  The applicant agreed by a letter of 26 July 2018 that the appeal could be heard by two judges.  We heard the appeal on 21 November 2018.

Discussion

15.  We observe first that none of the arguments relied upon in the Notice of Appeal, or the skeleton submissions, were raised as grounds for judicial review before the court below.  It is not open to the applicant to raise such grounds on appeal for the first time, well outside the time limit for bringing judicial review proceedings.

16.  In any event there is no merit in these grounds.

17.  As to the first ground, the judge did not refer to the applicant’s credibility and as is clear from the Board’s Decision, this was not the basis of the decision.

18.  As for the second ground, given the Board’s finding in relation to internal relocation it would also have been bound to fail.

19.  Further, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The judge would not be required himself to come to a view on the credibility of the applicant or the state protection afforded to the applicant from honour killing even if they had been raised before him, as the primary decision maker is the Board.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See:  Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. 

20.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.