RE ABBAS MUHAMMAD

CACV 196/2022

[2022] HKCA 1338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 196 OF 2022

(ON APPEAL FROM HCAL NO. 447 of 2019)

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JUDGMENT

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Hon Andrew Chan J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 27 April 2022[1] refusing 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 (“Board”) dated 17 January 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 29 March 2018 rejecting the applicant’s non-refoulement claim. The applicant informed the Court after contact being made by Court staff, that he overlooked the hearing date and therefore was not able to attend. As we are not going to re-fix the appeal, his application is considered based on all the documents at files.

Background

2.  The applicant is a Pakistani national. He surrendered himself to the Immigration Department on 2 September 2016, after entering Hong Kong without permission. The applicant raised his non-refoulement claim on 11 October 2016.

3.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by supporters of the Pakistan People’s Party (“PPP”) due to his support for the Pakistan Muslim League (Quaid e Azam Group) (“PML(Q)”). The factual background was summarized at paragraphs 6.1 to 6.19 of the Director’s decision.

4.  By notice of decision dated 29 March 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him. Those applicable grounds are BOR 3 risk[2], persecution risk[3], torture risk[4] and BOR 2 risk[5].

5.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 12 July 2018, during which the applicant gave oral testimony and answered questions from the Board. The Board accepted that the applicant was a grassroots level PML(Q) supporter, and gave some credence to the applicant’s evidence that he was attacked by 3 strangers in April 2016 who beat him with iron rods and that the applicant sustained open wound injuries which took 2 weeks to recover.

6.  However, the Board rejected the applicant’s evidence as to being a PML(Q) member, due to the fact that he had no PML(Q) membership card as well as his lack of knowledge of the PML(Q) party constitution and party manifesto. The Board also did not accept that he was targeted by the PPP in an assault during or shortly after an election in 2015, because the applicant could not correctly remember the election dates. Taken together with the fact that he was only a low-level PML(Q) supporter and that he had not suffered any severe pain or suffering, the Board found that there was no real risk of harm in the event of refoulement. The Board also found that reasonable state protection was available and that internal relocation would not result in undue hardship to the applicant.

7.  Therefore, on 17 January 2019 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

8.  On 18 February 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affirmation he raised a number of grounds for judicial review, which the Judge summarized at [19] of the Form CALL-1 as follows:

“19. The Applicant’s grounds for application as advanced in his supporting affirmation are repetitive. They mainly revolve around procedural unfairness arising from:

(1) lack of legal representation (paragraph 12, 14, 15 and 26);

(2) lack of language assistance (paragraph 14, 15, 16, 18, 19, 21, 22, 23, 24, 26 and 32);

(3) the Board’s failure to give reasons for its finding (paragraph 25);

(4) the Board making the Decision on a template basis (paragraph 13);

(5) the Board’s erroneous finding on availability of state protection (paragraphs 27, 28 and 29);

(6) the Board rejecting the Applicant’s evidence about his fear and risk (paragraphs 27 and 32); and

(7) the Board’s failing to find the Applicant is still at risk (paragraph 34).”

9.  Following consideration of the documents only, on 27 April 2022 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [20] – [38] of the Form CALL-1. In summary, the Judge considered that there was no substance to Grounds (1) and (2) mainly because the applicant was legally represented and provided with language assistance on his claim before the Director. Thus, the Judge considered that the applicant suffered no prejudice from the lack of legal representation before the Board or from the level of language assistance provided.

10.  As for Ground (3), the Judge stated at [29] that the Board gave clear reasons for its finding of facts, and in its decision discussed the evidence that the Board accepted, the evidence it gave some credence to, and the evidence it rejected.

11.  For Ground (4), despite the standardized format of the Board decision, the Judge was satisfied that the Board correctly identified the issues and properly dealt with them.

12.  The Judge rejected Ground (5), on the basis that the weight to be given to country of origin information (“COI”) is basically a finding of fact which is solely within the province of the Board, and that on balancing the COI, the Board found that adequate state protection was available. As for Grounds (6) and (7), the Judge considered that these amounted to an appeal against the Board’s findings of fact, and are not proper grounds to apply for leave to apply for judicial review. At [37] – [38] of the Form CALL-1 the Judge concluded:

“37. Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claims are founded on his fear of harm arising from the two assaults on him by members of PPP. The Board accepted his evidence about the assaults but found they were not politically motivated and the harm did not reach the minimum level of severity. It also found state protection available to prevent or minimise the risk. The Board had carefully weighed the evidence and assessed his credibility. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

38. The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. There were no errors of law or procedural unfairness in its Decision. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review was refused.”

Appeal to this Court

13.  On 11 May 2022, the applicant filed his Notice of Appeal against the Judge’s decision. His grounds of appeal are essentially that the lack of legal and language assistance resulted in procedural unfairness. He pointed out that neither he nor his friend who assisted him in preparing his Form 86 understood legal jargon and that without legal assistance, he could not identify legal errors in the Director or Board’s decisions. The applicant also pointed out that his friend was not a professional, and that he could not always find help with interpretation or translation. Further, the applicant requested that the judgment be translated or read to him, as no translation of the judgment has been provided.

14.  The applicant lodged written submissions on appeal on 2 August 2022. In those submissions, he largely reiterated his grounds of appeal, and elaborated that without sufficient language assistance to enable him to understand his claim (and the Board’s decision rejecting it) to its fullest, he was deprived of the right to lodge a proper appeal and his case was put at risk of being dismissed for lack of grounds. He further submitted that the authorities had not taken into account the fact that English was not his first language, that he had no right to work in Hong Kong and therefore could not hire proper help, and that he was traumatized by the problems in his home country.

Legal principles

15.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [6]; Re Md Shohel Sheak [7]; and Re Limbu Birkhaman [8]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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’s decision, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, mainly due to its assessment that the applicant had not suffered any severe pain or suffering and that he was only a low-level PML(Q) supporter, not a party member. The Board also found that reasonable state protection was available and that internal relocation would not result in undue hardship to the applicant. Thus the Board found that there was no real risk of harm in the event of refoulement. Such findings are within the province of the Board. The Court will not interfere with such assessments unless they are reversible on public law grounds. There seem to be no such valid public law grounds.

17.  As for the applicant’s arguments regarding lack of legal and language assistance, whether the level of legal or language assistance provided would result in unfairness, depends on the circumstances.

18.  The applicant was legally represented and provided with language assistance on his claim before the Director. The Board decision was based on its assessment of the applicant’s oral testimony at the Board hearing together with his previous evidence presented to the Director, as well as on country of origin information. In the circumstances of this case, it is difficult to see how the level of legal or language assistance provided, in fact resulted in unfairness.

19.  In any event, as this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [9]; Re Zahid Abbas [10]; Re Lopchan Subash [11]; Re Gurnishan Singh [12]; Re Gurung Sagar [13]; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [14].

20.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave. There is no reasonably arguable ground to challenge his decision.

21.  For these reasons, this appeal is dismissed.