RE SHAH WALEED

CACV 170/2020

[2021] HKCA 46

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 170 OF 2020

(ON APPEAL FROM HCAL NO 2863 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 28 May 2020[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Pakistan.  He is 29 years old.  He came to Hong Kong illegally on 13 November 2015 and was arrested on the same day.  He lodged a non-refoulement claim on 15 November 2015.  His claim was made on the basis that he would be harmed or killed by members of Muttahida Qaumi Movement (“MQM”) because they demanded him for extortion which he refused.

The Director’s decision

3.  By a Notice of Decision dated 28 February 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director considered that the low frequency and intensity of the past ill-treatment from MQM members indicated that the asserted risk of harm upon the applicant's return to Pakistan is unlikely to be materialized and  the perceived harm has not attained the requisite minimum level of severity.  The Director found that there is no evidence to show that the police or other authorities were involved in the harm or threats made against the applicant. The Director further assessed that the availability of state protection and internal relocation option further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.   An oral hearing was held on 19 September 2018.  The Board was not satisfied that the applicant will face harm of any kind if he returns to Pakistan and resides in Attock, where his family lives and he resided before his departure, as the Board considered that the MQM members would not pursue the applicant to Attock from Karachi according to the existing evidence.  Thus, the Board held that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the unified screening mechanism and rejected the appeal on 3 December 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 13 December 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7.  He put forward these grounds for his intended challenge:

(1)  He was not provided with language assistance;

(2)  He was not provided with legal assistance for his appeal and leave application;

(3)  It is irrational, unreasonable and unfair for the Board to reject the credibility of the application's whole case;

(4)  The Director has not explained how he exercised the balancing exercising in considering the country of origin information (“COI”);

(5)  The Director has adopted a formula and biased approach in assessing his claim;

(6)  The Board’s decision was not translated to him. Without knowing the reasons behind the rejection of his claim, he was deprived of the opportunity to make a full application for leave to apply for judicial review;

(7)  His life is genuinely in danger should he return to his home country.

The judge’s decision

8.  The applicant attended the hearing before the judge on 18 April 2019.  He admitted at the hearing that he had a fair interview and understood the Director's decision which was explained to him by his lawyer.  He further submitted that he understood the hearing bundle of the Board’s hearing which was explained to him by his friend and he has no complaint against the adjudicator and interpreter as he considered he had a fair appeal hearing before the Board.

9.  The judge followed Re Moshsin Ali [2018] HKCA 549 and decided that the Director's decision is not susceptible for judicial review.  The judge found that the ground pertaining to the lack of language assistance is not true as it is inconsistent with the applicant's oral submissions in court.  He further considered that the complaint of lack of legal assistance is untenable as the applicant does not have the absolute right of free legal representation at every stage of the proceedings and he had already had legal representation at the screening stage.  The judge also held that the applicant failed to identify in what respect he considered the Director was unfair or illogical in assessing the COI and the rest of the grounds are not supported by any evidence.

10.  As the applicant does not have a reasonable prospect of success in his intended judicial review, the judge dismissed the leave application on 28 May 2020.

Grounds of Appeal

11.  The applicant stated as his ground of appeal in the Notice of Appeal that his dangerous situation was disregarded.

12.  The Court received his skeleton submissions on 17 December 2020.  He put forward the following grounds in his skeleton submissions:

(1)   The judge failed to consider the significance and the level of unfairness the lack of language assistance has on him;

(2)   The judge did not provide explanation for rejecting his ground concerning the lack of legal assistance.

13.  At the hearing of the appeal, the applicant had nothing to say.

Discussion

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

(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 a heightened standard in scrutinizing the decision of the Board having regard to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials, risk of harm, state protection and viability of internal relocation are matters 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, procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by 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 were 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 could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

15.  The applicant’s complaints against the judge are untenable.  The judge’s explanation for rejecting the applicant’s ground 2 regarding the lack of legal representation is set out in paragraph 19 of the judge’s decision. The judge has duly considered the ground on the lack of language assistance.  The judge rejected this ground because of the applicant’s oral submissions as mentioned above.  The applicant has not provided any evidence to rebut the Board’s finding that he would not face harm of any kind if he returns to Attock in Pakistan.  He also failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

16.  There is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review.  Therefore, the appeal should be dismissed.

[1] [2020] HKCFI 966

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of life under article 2 of the Hong Kong Bill of Rights.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[5] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.