RE ALI MUHAMMAD

CACV 595/2019

[2020] HKCA 432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 595 OF 2019

(ON APPEAL FROM HCAL 1169 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr ALI Muhammad, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 23 December 2019 (“Judge’s Decision”) refusing him leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 21 May 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 31 August 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Pakistan now aged about 42, is a fear of being harmed or even killed by (1) 2 men named Tanvir and Rizwan (“Creditors”) for failing to repay them loans (“Loans”) owed to them by the applicant; (2) supporters of the Pakistan Muslim League (Noon) (“PML(N)”), a rival political party, as the applicant was a member of the Pakistan Tehrik-e-Insaf (“PTI”); and/or (3) Christians of the neighbourhood at Alama Iqbal in revenge for having accidentally burnt down half of their church.

3.  The circumstances giving rise to such fear have been set out in detail in [12] of the Director’s Decisions and [24] to [51] of the Board’s Decision and in gist in [3] to [9] of the Form CALL-1 dated 23 December 2019, [2019] HKCFI 2568 (“Form CALL-1”).  Briefly:

(1)  In 2001, the applicant borrowed the Loans, which were repayable by monthly instalments over 5 years.

(2)  The applicant started to fall behind in his repayments by 2002.  In around July 2002, a heated quarrel broke out between the applicant and the Creditors, followed by a fight which gave the applicant a cut to his lips which took 3 to 4 days to heal. The Creditors warned that if the Loans were not repaid soon, the applicant would be in trouble.

(3)  A few days later, the applicant met with the Creditors again.  He was only able to make a small part payment.  The Creditors were unhappy and made a complaint to the police, accusing the applicant of stealing the money from them. 

(4)  When the applicant heard that the police were looking for him, he fled to Karachi for 1½ to 2 months.  On 29 October 2002, he left Pakistan for Hong Kong where he overstayed and was subsequently arrested by police on 4 April 2008, whereupon he raised a torture claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Claim”).

(5)  The applicant was repatriated to Pakistan on 18 May 2012 after the Director dismissed the Torture Claim on 22 November 2011.

(6)  The applicant initially sought shelter with various family members to avoid his Creditors.  Eventually,with the help of some friends acting as middlemen, he persuaded the Creditors to give him a further 6 months to repay the Loans.  As it turned out, the applicant was only able to make another small part payment.  The Creditors gave him another extension of 1 month, during which the applicant made no further repayment.  The applicant last met the Creditors in the end of 2012.

(7)  Thereafter, he returned to his home village in Lahore.

(8)  In about the end of 2012, the applicant joined the PTI, organising meetings and campaigning for the party during the 2013 general election. 

(9)  He and his fellow supporters were frequently harassed and threatened by supporters of the rival PML(N).  On one occasion in February 2013, some 10 to 12 PML(N) supporters approached the venue of a PTI meeting before the meeting.  They first opened fire into the air and then shot at PTI workers who remained at the scene.  One such worker took 2 bullets and was seriously injured.  On another occasion in April 2013, they were dragged out of the local PTI office onto the street where they were punched and kicked by PML(N) supporters.  The applicant became so afraid for his life that he quit the PTI after the general election in May 2013.  Notwithstanding that, the applicant had been threatened by PML(N) people that they would not spare him.

(10)  One week after the election, on 13 or 14 May 2013, the applicant attended a wedding in Alama Iqbal. He and other guests were playing with fireworks, which accidentally started a fire in a nearby local church which was half burnt down. The villagers blamed the applicant for the fire.  As a result, a report was made to the police.  The applicant was arrested and charged with causing the fire.  He was convicted and jailed for 3 months.

(11)  After his release from prison in early November 2013, the applicant heard that the local Christians were planning to take revenge on him.  He resolved to leave Pakistan again.

(12)  On 9 December 2013, the applicant departed for China.

Illegal entry into Hong Kong and lodgment of NRF Claim

4.  The applicant entered Hong Kong illegally on 15 December 2013 and was arrested by the police on the same day.  He raised the NRF Claim by written representations dated 17 and 28 December 2013. A completed supplementary claim form dated 15 June 2017 was submitted on 16 June 2017.

Director’s Decision

5.  In processing the NRF Claim, the Director had also taken into account the materials generated by the Torture Claim.

6.  In place of a screening interview[1], on 10 August 2017, the applicant (who then had legal representation from the Duty Lawyer Service) provided written answers to a list of questions raised by the Director by letter dated 31 July 2017.

7.  The Director found the NRF Claim unsubstantiated under all applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

Appeals to Board and Board’s Decisions

8.  The applicant appealed against the Director’s Decision on 12 September 2017.

9.  After a rehearing on 27 March 2018, at which the applicant testified before, and answered questions by, the Board through an interpreter, the Board dismissed the appeal on 21 May 2018.

10.  More particularly, the Board considered much of the applicant’s evidence to be “unconvincing”, “inconsistent” and “not reliable”.  There is no evidence that the Creditors had physically harmed the applicant, or had attempted to do so.  There is nothing to suggest that he would be of interest to or at risk from the PML(N) now, long after he ceased to be involved with the PTI.  The applicant also confirmed that he had never directly received any threats from the Christian community nor was he ever subject to any physical attack by them.  The Board further assessed that even if the applicant had been able to show that he faced a real risk of harm as claimed, the risk could be avoided if he were to relocate within Pakistan, which was not unreasonable or unduly harsh.

Application for leave for judicial review and Judge’s Decision

11.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1169/2018 on 22 June 2018, supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on ground that (sic):

“… my appeal has been refused on 21^st May 2018 and it has been refused unfairly and I am not satisfied with the result. Therefore I wish to apply for judicial review to get a better decision after the hearing of my judicial review.”

12.  After hearing the application in open court at which the applicant was present and was assisted by an interpreter, the Judge refused leave.  His reasons can be found in [14] to [18] of the Form CALL-1:

“14. On 22 June 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he was not satisfied with their decisions but without providing any particulars or specifics or elaborations as to why he was not satisfied, nor did he identify any error of law or procedural unfairness in his process before them or in their decisions. As such I do not find any reasonably arguable basis for his intended challenge.

15. 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.

16. 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.”

Appeal to Court of Appeal - grounds of appeal and submission

13.  The notice of appeal filed herein on 17 December 2019 stated (sic):

“The Director’s Decision, it was evident that the Director has filed to appreciate or give the proper importance or weight-age to the presence of state acquiescence in the applicant’s case. This has indeed led to an unfair welcome of rejecting the applicant’s non-refoulement claim.”

14.  By his written submission dated 7 May 2020, the applicant asserted (sic):

“… I came Hong Kong to save my life. My enemy were too strong and influencial. They were powered by political ground. Because I was alone so I waw impossible for me to save my life. his is my short and true story.

After I came Hong Kong I applied non refoulement claim to be a asaylam seeker. But immigration officer did not properly investigate my claim and cancel my case. Torture claims appeal board adjudicator also totally follow the immigration officer. Though this two were different officer, I am 100% sure nobody cannot cancel my claim if he investigate my claim truly.

But my situation in Pakistan is remain same.  I cannot return.  So I request the honourable judges to accept my leave and protect my life.  Without your help, I will be very greatfull to you.”

15.  The applicant appeared in person at the hearing of the appeal on 27 May 2020.  He was provided with an Urdu interpreter.  He had nothing to add to his notice of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

16.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

17.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

18.  The applicant has simply failed to state in the notice of appeal or the written submission in what ways (if any) the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  Nor can we discern any such reason for interfering with the Judge’s decision.  The applicant had basically not identified to the Judge any single error of law, procedural unfairness or irrationality on the part of the Board, leaving no alternative to the Judge but to refuse leave for judicial review.  Needless to say, a mere statement of dissatisfaction with the Board’s Decision is not a ground for judicial review, properly so called.

19.  The notice of appeal targeted the Director’s Decision whereas the middle paragraph of the written submission criticised the Board for merely following the Director. As stated in [17] above, in hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is the judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim, or the Director’s rejection of the non-refoulement claim, the Court of Appeal intervening only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.

20.  In any event, insofar as the conduct of the Board is concerned, the allegation that it merely followed the Director is plainly unjust.  The Board conducted a rehearing.  It set out and independently analysed the applicant’s factual case and evidence, and explained its assessment of the lack of risk of harm in all 3 aspects claimed by the applicant, in great details in [60] to [71] of its decision.  We can find no fault with the Board’s reasoning.

21.  Nor is it of any help for the applicant to repeat the predicament that he supposedly faces in his home country, as the applicant has done in the first and third paragraphs of the written submission.  As explained in [16] above, the assessment of risk of harm is within the purview of the Board (after the Director), and not the judge of the Court of First Instance in dealing with an application for leave for judicial review or the Court of Appeal in hearing an appeal against refusal of leave for judicial review.  The Board heard the applicant and had ruled against him on the risk of harm.

Disposition

22.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

[1] Which was cancelled due to the applicant’s illness.

[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.

[6] [1954] 1 WLR 1489.