RE FAHEEM MUHAMMAD

CACV 321/2020

[2020] HKCA 993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 321 OF 2020

(ON APPEAL FROM HCAL 443/2018)

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J U D G M E N T

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

Introduction

1.  On 23 July 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 9 March 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 28 July 2016 and 3 July 2017 rejecting the applicant’s non-refoulement claim.

2.  On 3 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 18 March 2016 and was arrested by police the same day.  He was referred to the Immigration Department on 21 March 2016.  The applicant lodged a non-refoulement claim on 23 March 2016. 

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by Pathan people who belonged to the Taliban and who had killed his elder brother.  The factual background was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2020] HKCFI 1483).

5.  By notices of decision dated 28 July 2016 and 3 July 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 21 November 2017.  The Board found that the applicant was not credible as a witness and that there was no real risk of harm.  The Board also found in any event that internal relocation was viable.  Thus the Board dismissed the applicant’s appeal on 9 March 2018 on all the applicable grounds.

Decision of the court below

7.  On 19 March 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his Form 86, he raised a number of grounds, which are set out at [10] of the Judge’s decision.

8.  Upon consideration of the documents only, on 23 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [15] of the Form CALL-1 ([2020] HKCFI 1483, HCAL 443/2018) as follows:

“ 10. On 19 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  irrationality in failing to consider the concept of state acquiescence;

(2)  procedural impropriety in making insufficient inquiry;

(3)  failure to provide adequate reasons as to decision made;

(4)  procedural impropriety/unfairness in failing to investigate into the Country of Origin Information of Pakistan;

(5)  irrationality in failing to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  irrationality in failing to consider a consistent system of human rights violations;

(7)  irrationality in placing weight on irrelevant matters or inaccurate or incorrect facts;

(8)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(9)  procedural impropriety in applying the incorrect standard of proof with no reasonable basis for rejecting the credibility of his claim, in failing to consider the extended state acquiescence and failing to fully consider the COI reports in assessing risk to the Applicant;

(10)  irregularity of the decision-maker being a different person from the interviewing officer; and

(11)  failing to provide proper basis for consideration of internal relocation.

11.  These are however all 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 Board or the adjudicator had erred in the decision, or what relevancy was the concept of state acquiescence to his claim, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way did the adjudicator fail to apply the correct standard of proof in assessing the credibility of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 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.

13.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 53 – 90 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  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.

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.”

Appeal to this Court

9.  On 3 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal was that the Board and the Director had not weighed or realized the gravity of his circumstances in considering his claim.

10.  On the same day, the applicant agreed in writing for the appeal to be disposed of on paper by the Court without any oral hearing.

11.  He lodged his written submissions on 13 November 2020 which we have considered.  Those submissions consist largely of general statements of law without identifying how they specifically relate to or apply to make good his appeal.

12.  In paragraph (5) of his submissions, he said that the Board acted in a procedurally unfair manner by failing to properly assess his credibility.  But the applicant did not provide any details or particulars as to how the Board failed in the proper assessment of his credibility.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.  As mentioned earlier, the applicant did not in his Notice of Appeal or his submissions provide any particulars in support of his arguments, and did not identify any specific error in the Judge’s decision or any other specific ground for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the applicant’s credibility.  The Board also found that internal relocation was viable in any event.  Such findings are within the province of the Board and the court will not interfere with such assessments unless they are reversible on public law grounds. 

16.  Having considered the materials before us, there is one aspect in the assessment of evidence by the Board which we have some difficulty with.  The applicant relied on an incident happened on 27 August 2017 to support his claim.  According to him, his family was attacked by the Pathan Taliban when they came to his family home in Bhooti village to locate him and found he was not there.  In the incident, his brother suffered leg injury from a gunshot fired by the attackers.  The applicant produced a report to the Pakistan police (“the FIR”) and a newspaper report of 30 August 2017 in the Daily Jang, Rawalpindi to support his case.

17.  The Board addressed this part of the applicant’s case at paragraphs 85 to 88 of the Board’s Decision as follows:

“ 85. In relation to the appellant’s submission and supporting documents received prior to the hearing and in which he claims his mother, sister, and brother were attacked in their own home by four unknown persons on 27 August 2017, I do not accept this occurred for the following reasons.

86. Firstly, and as discussed with him at the hearing, I find it remarkable that the claimed attack was reported to the police when the killing of his brother was not reported. I found his explanation of this to be unconvincing. Further, I find the timing of the claimed attack to raise suspicion given the passage of some 18 months between the appellant leaving Pakistan in March 2016 and the claimed attack, with no apparent action on the part of the Pathan Taliban in the intervening period. Further, and as put to the appellant at the hearing, I find the claim that one of the attackers attempted to shoot the appellant’s brother at close range but the short merely grazed or touched his brother’s leg to lack the ring of truth. Finally, having regard to my findings as to the appellant’s apparent willingness to exaggerate and to fabricate his evidence, coupled with COI about fraudulent FIRs and newspaper reports, I conclude that I cannot place any significant weight on these documents as probative evidence of his claim.

87. I observe that these documents suggest the attack occurred on 27 August 2017, however the applicant had departed Pakistan in March 2016, and it appeared that nothing eventful had occurred between his departure for a period of some 18 months until August 2017. I do not accept the appellant’s explanation which was that maybe those involved did not have the opportunity to do anything before then.

88. For the foregoing reasons, I reject the appellant’s claim that his mother, sister and brother were attacked as claimed, or at all, on 27 August 2017, or at any other time.

18.  It seems that the Board was skeptical towards the authenticity of the FIR and the newspaper report notwithstanding that the copies produced by the applicant were apparently notarized.  Since the Board did not hear from the Director, there was actually no evidence before the Board casting doubt on the authenticity of these documents.

19.  Further, the reasons given by the Board to discredit these documents did not seem to us to be very solid.  The extent of the brother’s injury could be explained since there was no suggestion that the attacker was aiming at the brother when he fired the shot.  Further, the coincidence between the timing of the attack and the issue of the notice of hearing (commented upon by the Board at paragraph 71 of the Board’s Decision) is speculative.

20.  Overall, the Board appeared to be much influenced by the information about fraudulent FIRs and newspaper reports it had taken into account at footnote 11.

21.  The Judge did not address this aspect of the evidence and the Board’s assessment on the same. This was probably due to the lack of reference to the same in the Form 86 and the grounds stated in the Affirmation of the applicant of 19 March 2018.  

22.  However, on 30 August 2018 the Court issued a request for further documents to the applicant.  On 5 September 2018, the applicant lodged with the Court several documents, including a copy of the FIR and the newspaper report with translation.

23.  In such circumstances, we are of the view that applicant had raised the issue about the assessment of FIR and the newspaper report before the Judge.  Since the Judge had omitted to address the same, it falls upon this Court to examine the same.

24.  In our judgment, applying the standard of anxious scrutiny, it is reasonably arguable that the Board’s assessment of these evidence was inadequate.  Given the duty of joint endeavor as discussed in Re MI CACV 69/2014, 26 September 2014, it is reasonably arguable that in the present circumstances the Board should at least direct further investigation by the Director on the allegations regarding the incident of 27 August 2017 and the authenticity of the FIR and the newspaper report instead of rejecting the same in the manner it did.

25.  For these reasons, we shall allow the appeal and grant leave to the applicant to apply for judicial review.  He should proceed in accordance with Order 53 of the Rules of the High Court (Cap 4A) by filing the originating summons within 14 days from the date of this judgment.