RE RASHEED MUHAMMAD

CACV 416/2019

[2020] HKCA 341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 416 OF 2019

(ON APPEAL FROM HCAL 1719/2018)

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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.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 5 September 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 20 October 2017 and the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 2 August 2018.  In the former decision, the Director rejected the applicants’ claim for non-refoulement protection in Hong Kong; and in the latter decision, the Board upheld the said decision of the Director.

2.  Due to the non-compliance with an unless order of 14 November 2019 in terms of lodging skeleton submissions, the hearing date for this appeal (originally listed for 4 February 2020) was vacated and this appeal is processed on paper based on the materials already lodged.

3.  This is our judgment.

Background

4.  The applicant is a national of Pakistan.  According to him, he departed Pakistan for the mainland China on 28 October 2013.  He entered Hong Kong illegally on 7 November 2013, and was arrested by the police on the same day.  He lodged him claim for non-refoulement protection on 21 November 2013.

5.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or even killed by the people of Pakistan Muslim League (N) because of his political affiliation with their rival, Pakistan People’s Party.  The background facts of this case were succinctly set out by the Judge in [4] of the Form CALL-1 ([2019] HKCFI 2188).  

6.  The Director assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4]. By a notice of decision dated 20 October 2017, the Director determined the claim against him.

7.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 17 May 2018, where the applicant elected to give evidence[5]. Having considered the evidence, the Board identified a number of significant inconsistencies between the oral evidence and the statement made in the Non-Refoulement Claims Form[6].  The Board concluded that the applicant was not a truthful witness and he had fabricated his claims in order to stay in Hong Kong[7].  It did not accept the applicant’s explanation that the inconsistencies were due to his illiteracy and his inclination to forget things[8].  It also found that internal relocation was a viable option for him[9].  As a result, the Board found that the applicant would not be at risk of any harm if refouled[10]. By a decision dated 2 August 2018, the applicant’s appeal was refused and the Director’s decision was confirmed.

The Judge’s decision

8.  On 22 August 2018, the applicant applied to the court seeking leave to apply for judicial review.  As mentioned earlier, the intended judicial review was against the decisions of both the Director and the Board.  The applicant set out his intended grounds for seeking relief in his supporting affirmation filed on the same date.  The Judge categorized them into six main grounds: see [11] of the Form CALL-1.  In gist, grounds (1) and (5) are general assertions that the decisions were unfair and the decision-makers had adopted a formulaic approach in assessing the applicant’s claim.  Grounds (2), (3) and (4) involved the complaints of the lack of legal assistance and language assistance rendering him being confused at the hearing and unable to understand the Board’s decision.  Ground (6) concerned the Board’s failure to consider his illiteracy and his practice of fasting when assessing his evidence. 

9.  An oral hearing was held before the Judge upon the request of the applicant.

10.  The Judge held in [12] of the Form CALL-1 that, in reliance on the case Re Moshsin Ali [2018] HKCA 549, the applicant could no longer seek judicial review against the decision of the Director once the appeal to that decision had been pursued. 

11.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave for judicial review against the Board’s decision were set out in [14] – [20] of the Form CALL-1 as follows:

“ 14.  The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

15.  I put the Board’s findings above to him and asked him if he had any comments on them. He was unable to say why his fasting affected his evidence. He said he had no comments and if the government decided to send him back to Pakistan, he would leave here.

16.  It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

17.  Grounds (1) and (5) are his opinions without any evidence in support of them. They do not stand.

18.  Grounds (3), (4) and (6) are simply not true as they are inconsistent with what the applicant said in court. They fail.

19.  As to ground (2), the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 had decided that the applicant does not have the absolute right of free legal representation at every stage of the proceedings. He had already had free legal representation provided by the Duty Lawyers Scheme at the screening stage. This ground fails.

20.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

The appeal

12.  On 9 September 2019, the applicant filed a notice of appeal.  In it, the applicant stated that:

“I am not satisfied with the decision given by decision makers. Because I have problem in my own country and please help me to stay here until I have problem.” (sic)

13.  By a letter dated 9 September 2019, the applicant gave consent to this appeal being heard by a 2-member court.

14.  Notwithstanding that he was directed to do so, the applicant did not lodge any skeleton submissions in support of this appeal.

General principles

15.  Before we address the merits of this appeal, we would highlight some general propositions that this Court has adopted in determining an appeal for non-refoulement cases.

(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)  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.

Discussion

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding on the applicant’s credibility.  It was also based on the finding that the internal relocation was a viable option for the applicant.  As explained above, assessment of risk of evidence and finding of viability of internal relocation are within the province of the Board.  The court will not interfere with such findings unless they are reversible on public law grounds.  After considering the Board’s decision, the Judge found no realistic prospect of success to challenge the findings of the Board in the intended judicial review.

17.  The ground advanced by the applicant in this appeal does not engage with the reasons of the Judge in refusing leave.  There is no viable ground of appeal.

18.  As this Court (differently constituted) has explained in Re Pannu Gurpreet Singh [2019] HKCA 1025 at [16], the Court is not empowered to grant a permission to remain in Hong Kong in place of the Director.

19.  In our view, nothing stated by the applicant in the notice of appeal pinpoint any error on the part of the Judge.  Having reviewed the materials before us, we can find nothing that constitutes a valid public law ground to disturb the decision of the Board.  We agree with the Judge that leave to apply for judicial review should be refused.

20.  For these reasons, we dismiss the appeal.