IMRAN v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 500/2019

[2020] HKCA 402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 500 OF 2019

(ON APPEAL FROM HCAL NO 503 OF 2018)

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J U D G M E N T

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Hon Alex Lee J (giving the Judgment of the Court):

1.  This is the appeal against the decision of Deputy High Court Judge Bruno Chan on 22 October 2019[1] refusing leave to the applicant to apply for 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 31-year-old national of Pakistan who entered Hong Kong illegally on 1 April 2014.  He surrendered to the Immigration Department on 28 July 2014 and raised the non-refoulement claim on 3 October 2014.  His claim was made on the basis that he will be harmed or killed by some land mafias over certain land dispute.

The Director’s decision

3.  By a Notice of Decision dated 15 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and  torture risk[5].

4.  The Director considered that the low intensity and frequency of ill-treatment from the land mafias in the past is indicative of low future risk of harm upon the applicant’s return to Pakistan.  The Director found that the problem between the applicant and the land mafias are private disputes.  Also, there is no indication that the government of Pakistan has been involved in, been indifferent to or provided any form of encouragement to the applicant’s enemies in threatening or harming him.  The Director also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  The facts of the applicant’s case do not engage BOR 2(2) to 2(6) (in relation to death sentence and genocide) and that he has also failed to established a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2(1) upon his return to Pakistan. Thus, the non-refoulement application was rejected by the Director. 

The Board’s decision

5.  The applicant attended the hearing of the appeal against the Director’s decision on 9 February 2018. 

6.  The Board found that the applicant will not face any appreciable risk of being harmed by the criminals and/or land mafias even if he returns to his home area of Pakistan as no further harm befell him in the several years before he departed Pakistan.  Moreover, the Board considered that the applicant could escape from the risk, if any, by internal relocation within Pakistan.  The Board concluded that the applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds and rejected the appeal on 16 March 2018. 

The Judge’s decision

7.  The applicant filed a Form 86 and an affirmation on 28 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

8.  The Judge heard the leave application on 24 January 2019.  His lordship focused on reviewing the Board’s decision as the Director’s decision is not susceptible to judicial review after an appeal to the Board was pursued.  The judge rejected the applicant’s grounds for reasons stated in paragraphs 12 to 17 of his decision dated 22 October 2019. In particular, it was held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[6] nor the judgment of FB v Director of Immigration[7] prescribed that a claimant like the applicant must have an absolute right to free legal representation at all stages of the proceedings.  The judge noted also that the applicant already had the benefit of legal representation in presenting his case to the Director and was able to testify and make representation in his appeal hearing before the Board with the assistance of an interpreter without any difficulty.  As regards the Board’s finding as to the risk of harm, the judge noted that even on the applicant’s own case it was confined to local land mafias or criminals in his home district only.  It was held that there is no error of law or procedural unfairness in the Board’s decision, nor is there any failure on its part to apply high standards of fairness.  Therefore, the leave application was refused on 22 October 2019. 

The grounds of appeal

9.  The applicant filed a Notice of Appeal against the decision of the judge on 28 October 2019.  The grounds of appeal stated in his written submissions may be summarized as follows:

(1)     The Director and the Board dismissed his claim without proper investigation.

(2)     His interpreter did not translate all of his speech so the Director failed to understand his claim.

(3)     No lawyer helped him in the appeal before the Board while he should have the right to get help from lawyer.

(4)     The hearing bundle was supplied by the Board only a few days before the hearing so he could not get enough time to prepare for the appeal.

(5)     The judge did not want to listen to the problems in his country but the judge described the problems of his country in the decision.  It is not fair.  The judge failed to show any good cause to dismiss his leave application.

Legal Principles

10.  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[8].

11.  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.

12.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

13.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

Analysis and disposition

14.  As to Ground (1), it has already been held in Re Moshsin Ali[9] that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.  Therefore, the judge was correct in refusing to review the Director’s decision.  For the same reason, this court will not entertain the applicant’s complaints regarding the Director’s decision. 

15.  One of the main reasons for dismissal of the applicant’s claim was that, even according to the applicant’s own evidence, no further harm befell the applicant in more than seven years after the shooting incident in December 2006 and before he left Pakistan in 2014.  There was no evidence to show that the Board has erred in its findings.  Also, the applicant has failed to show there are errors of law or procedural unfairness or irrationality in the decision of the Board.  Therefore, this ground is devoid of merit.

16.  As to Grounds (2) and (4), the applicant’s complaints against the interpreter and the delay of the provision of the hearing bundle by the Board were not raised in his previous leave application.  The Court of Appeal has repeatedly stressed that an appeal is not the occasion for an applicant to introduce new grounds after the original grounds had failed in the court below.  Thus, this court would not entertain these new grounds.

17.  As to Ground (3), as pointed out by the judge, an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.  We agree with the judge that the lack of legal representation does not constitute a valid ground for reviewing the Board’s decision and this ground is therefore unmeritorious.

18.  As to Ground (5), this ground is without basis. In fact, at the hearing on 24 January 2019, the judge asked if the applicant had anything to address.  The applicant stated that he did not have anything to address and all his grounds were in the papers.  The applicant was given sufficient opportunity to make submissions before the judge with the assistance of an interpreter.  The judge explained in detail his reasons for dismissing the application and his decision is well founded.  The applicant failed to show that the judge has made any errors of law or failed to take account of any relevant matters placed before him or that his decision is otherwise plainly wrong.

19.  There is no merit in any of the applicant’s grounds and no prospect of success in the intended application for judicial review.  Accordingly, we dismiss the appeal.