RE EHSAN QADIR

CACV 518/2019

[2020] HKCA 460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 518 OF 2019

(ON APPEAL FROM HCAL 323/2017 & 508/2017 (CONSOLIDATED))

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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.  On 25 October 2019, Deputy High Court Judge KW Lung (“the Judge”) refused 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 (“the Board”) dated 29 May 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 20 June 2014 and 10 January 2017 rejecting the applicant’s non-refoulement claim.

2.  On 8 November 2019, the applicant filed a Notice of Appeal against the Judge’s decision. 

3.  By a letter of 8 November 2019, the applicant consented to the appeal being processed by a 2-member court. 

4.  By a letter dated 7 January 2020, the Court informed the applicant that the appeal shall be heard on 30 March 2020.  The Court further made an unless order directing skeleton submissions be lodged by 3 February 2020.

5.  Due to the General Adjournment Period due to public health risk arising from COVID-19, the Registry of the Court was closed from 29 January to 8 March 2020.  By another letter dated 28 February 2020, the Court extended the time for lodging skeleton submissions pursuant to the unless order to 13 March 2020. 

6.  The applicant did not lodge skeleton submissions by 13 March 2020.  Pursuant to the unless order, the hearing date was vacated and this appeal is processed on the basis of the materials already placed before us.

Background

7.  The applicant is a national of Pakistan.  He entered Hong Kong illegally by boat via mainland China on 21 July 2006 and was arrested by the police on 5 March 2007.  He lodged a non-refoulement claim on 26 May 2008. 

8.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his uncle, cousins and nephews due to a land dispute.  The factual background was summarized by the Judge in [5] – [7] of the Form CALL-1 ([2019] HKCFI 2633).

Director and Board’s decisions

9.  By a notice of decision dated 20 June 2014, the Director assessed the applicant’s claim on the applicable grounds and determined it against him.  The applicable grounds covered BOR 3 risk[1],  persecution risk[2], and torture risk[3], but not BOR 2 risk[4]. By further notice of decision dated 10 January 2017, the Director assessed and rejected BOR 2 risk on the applicant’s claim.

10.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  The Board held an oral hearing on 15 May 2017. 

11.  After considering all the applicable grounds for a non-refoulement claim, including torture risk, persecution risk, BOR 3 risk and BOR 2 risk, the Board rejected the claim on all grounds in its decision dated 29 May 2017.

The applications for leave to apply for judicial review

12.  On 23 June 2017 and on 11 August 2017, the applicant sought leave from the court to apply for judicial review against the Director’s decision dated 20 June 2014 (by way of HCAL 323/2017) and the Board’s decision (by way of HCAL 508/2017) respectively.  At the request of the applicant, the Judge ordered the consolidation of these applications on 30 May 2019.  The applicant’s proposed grounds for judicial review as stated in his Form 86 were summarized by the Judge at [14] of the Form CALL-1 ([2019] HKCFI 2633).

13.   Upon the request of the applicant, an oral hearing was held on 30 May 2019 and heard by the Judge, who ultimately refused to grant leave for the applicant to apply for judicial review.  The reasons for refusing leave were set out at [12] – [26] of the Form CALL-1, [2019] HKCFI 2633.

General legal principles for appeals in non-refoulement cases

14.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this application, the salient principles are as follows:

(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)  An appeal against the refusal of leave by a judge in 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 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.  In his Notice of Appeal of 8 November 2019, the applicant referred to various procedural errors or unfairness in the Board and the Director’s decisions.  However, he did not identify any specific error in the Judge’s decision or any other potential grounds for reversing the Judge’s decision.

16.  As mentioned, an appeal should focus on the correctness of the Judge’s decision and this Court would consider that question in light of the grounds advanced by the applicant to reverse the Judge.  We are not sitting as a Court of First Instance to permit the applicant to have a renewed application for leave.  Neither are we sitting as the primary tribunal for assessing the applicant’s claim.  That is the role of the Director and the Board.

17.  As correctly stated at [15] and [16] of the Judge’s decision by reference to Re: Moshsin Ali [2018] HKCA 549, given that there was an appeal to the Board, the Director’s decision had been overtaken and it ceased to be amenable to judicial review.

18.  Further the Form 86 application for leave to judicial review the Director’s first decision was made in 2014 and HCAL 323/2017 was only filed on 23 June 2017, which was grossly out of time.  No good reason for extension of time had been shown for the judicial review to be brought.  It should have been dismissed on this ground alone. 

19.  Regarding the Board’s decision, the only grounds advanced before the Judge were summarized by him at [14] as follows:

“ 7. The Adjudicator failed to attain the high standard of fairness.

8. The Adjudicator failed to make sufficient enquiry before finalizing the Decision as he failed to advise the applicant to obtain medical reports and/or evidence from Pakistan authorities when deciding the seriousness of his injuries. Medical reports are relevant consideration when deciding if action of violence were severe enough to be qualified as “torture”.”

20.  The ground under (7) was a general statement.  It cannot by itself constitute a ground for judicial review without supporting facts.  The substance of the applicant’s complaint had to be derived from (8). 

21.  In respect of (8), the Judge held at [24]:

“ Ground (8) fails too because the Adjudicator has no duty to give him the advice as he said. He may give evidence of his injuries at the hearing. In fact, the Board did not make much finding in his injury. It took the view that his alleged risks were empty threats by his uncle and his relatives. They are not real risks.”

22.  The Judge is correct in holding that the Adjudicator did not have any duty to give advice to the applicant to obtain the medical reports and other evidence: see Re Saqlain Muhammad [2018] HKCA 346.  The applicant had the benefit of legal representation arranged by the Duty Lawyer Service in presenting his case to the Director.  Though he had no representation before the Board, he should be aware of the need to produce all evidence in support of his claim as he had been repeatedly reminded of the same: first in Part 2 of the NCF (and the NCF was completed by him with the assistance of a lawyer); then in the pre-amble to the interview of 20 May 2014 (and he was asked about documents in support of his claims at the interview); and also at p.6 in the Notice of Appeal form which was used by him to lodge appeal to the Board.  

23.  Having considered the materials before us, we are of the view that the Board was entitled to hold that there are no substantial grounds for believing that the applicant would be subject to torture or the other kinds of risk for non-refoulement protection. The Judge has applied the relevant legal principles correctly.  And he is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

24.  For these reasons, we do not see any prospect of success in this appeal.  Accordingly, this appeal is dismissed.