NISAR AHMED v. RTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 462/2019

[2020] HKCA 335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 462 OF 2019

(ON APPEAL FROM HCAL NO 1800 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung (“the Deputy Judge”) as set out in the Form CALL‑1 dated 19 September 2019 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 2255.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 28 August 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 13 February 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  By a letter dated 2 October 2019, the applicant gave consent to the appeal being heard by a two-member court. 

A.   Background

3.  The applicant is a national of Pakistan.  He entered Hong Kong on 13 February 2016 illegally and was arrested on the same day.  He lodged a non-refoulement claim on 17 February 2016.

4.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s Decision, and paragraph 10 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that he would be harmed or killed by the family members of a traffic accident’s victim.  The applicant was a driver.  In 2015, he involved in a traffic accident which killed a person on the road.  His father asked him to leave the scene.  However, his father was unable to negotiate and settle the matter with the deceased’s family members, who tried to locate the applicant and kill him.  Around six weeks after the accident, he was chased by some people riding motorcycle and also received death threats via telephone.  He reported the matter to the police but of no avail.  Meanwhile, he was told that the victim’s family members were in opposite political party^[1]with his father who also received death threats from them.  As a result, he fled to Hong Kong.

B.   The Director’s Decision and the Board’s Decision

6.  The Director assessed the BOR3 risk^[2], the persecution risk^[3], the torture risk^[4] and the BOR2 risk^[5] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

7.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 17 April 2018. However, the applicant refused to answer questions raised by the Board despite the Board’s warning that such refusal would leave the Board with no means to clarify and verify his claim.  After careful consideration of the documents available before it, the Board refused to accept the applicant’s claim.  

8.  The Board did not accept that the applicant faced any real risks of harm from the victim’s relatives or the supporters of the opposite political party (paragraphs 24-35 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.  

C.   The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 31 August 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review were summarized by the Deputy Judge at paragraph 12 of the Deputy Judge’s Decision as follows:

“12. In his submission to F86 in support of his application dated 31 August 2018, the applicant relied upon the following grounds:

(1) the Director and the Adjudicator had wrongly assessed his claim;

(2) the Director failed to consider state acquiescence;

(3) the Director did not take into account of his argument;

(4) the Director failed to consider the Country of Origin Information in favour of his case; and

(5) the Director failed to maintain a high standard of fairness.”

10.  The Deputy Judge heard the applicant’s leave application on 18 April 2019.  During the hearing, an interpreter was arranged for the applicant.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 13-21 of the Deputy Judge’s Decision:

“The Director’s Decision

13. The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude 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.’

14. The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

15. The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. His lawyer had explained the Director’s Decision to him. He admitted that he deliberately refused to answer the Adjudicator’s questions. He explained that he was told by the inmates in the Correctional Centre that if he answered the questions, he would be kept in custody for a longer period of time.

16. I have put the Board’s findings to him and asked for his comments. The applicant said that he had no comments on them.

17. It is obvious that as the Board had explained to the applicant the purpose of the hearing and that without his cooperation, the Board would not be able to assess the evidence by taking into consideration his oral evidence and explanation. The Board was entitled to assess his evidence without his input in light of his refusal of cooperation. As a result, the Board accepted the Director’s Decision and refused his appeal.

18. The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HCAL126/2010, C.A. at §25.

19. This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

20. The above grounds are not substantive grounds in support of his application. They fail.

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

D.   Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 2 October 2019.  He stated that his grounds of appeal would be provided at a later date.  On 21 October 2019, the applicant filed a “supplemental notice of appeal”.  He explained in the supplemental notice of appeal that he deliberately refused to answer the Board’s questions because he would be kept in custody for a longer period if he answered.  He also repeated his claim.  Other than that, he did not identify any errors in the Deputy Judge’s Decision.

12.  Pursuant to Master Au-Yeung’s directions dated 24 October 2019, the applicant filed his skeleton submissions on 12 November 2019.  In the lengthy submissions, he argued that the Board had unlawfully fettered its discretion; acted unreasonably and failed to apply the high standard of fairness principle.  He also alleged that the hearing bundle was provided to him late and that the Board relied on hearsay or outdated sources.  He also submitted that the Board failed to examine extended state acquiescence, failed to consider that the police force in Pakistan was unable to provide effective protection, failed to consider that the applicant was unrepresented and failed to make sufficient inquiries. 

13.  The applicant also argued that the Director failed to consider the concept of extended acquiescence, failed to consider several country of origin information and failed to advise the applicant to obtain medical evidence for his BOR2 risk assessment.  In addition, the applicant claimed that he had been tortured mentally but not physically. 

14.  Apart from these vague allegations against the Board and the Director, the applicant did not identify any errors with sufficient particularities in the Deputy Judge’s Decision.

15.  At this hearing, the applicant said at the time of the hearing before the Board, he was in jail custody and under stress and therefore he was unable to express himself in a good manner before the adjudicator.  He also said he did not have a chance to get a lawyer and his application for legal aid had been refused.

E.   Discussion

16.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. They can be summarized as follows.

17.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

18.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an 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 determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

20.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

21.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

22.  The applicant failed to identify any viable grounds to challenge the Deputy Judge’s Decision.  All the grounds in the Notice of Appeal were against the decision maker, i.e., the Board and the Director, which had been addressed by the Deputy Judge.  Nor did he point out any error committed by the Deputy Judge in his submissions at the hearing.  Thus, in the absence of any identified viable grounds advanced by the applicant against the Deputy Judge’s Decision, we dismiss this appeal. 

23.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.   Disposition

24.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.