RE RAZA AHMED

CACV 197/2018

[2018] HKCA 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 197 OF 2018

(ON APPEAL FROM HCAL 796/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 21 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 25 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 13 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 13 September 2011 as a visitor. He surrendered to the Immigration Department on 19 October 2011. He lodged a non-refoulement claim on 3 November 2011. 

3.  The applicant’s claim was based on the threat from members of the Pakistan People’s Party.  According to the applicant, he testified against those members in a murder case in around 1996.  After their release, they threatened to harm the applicant.  He decided to flee to Hong Kong.

4.  By a Notice of Decision dated 13 April 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 August 2017, the Board dismissed the appeal on 25 August 2017 (“Board’s Decision”).

6.  At [29] of the Board’s Decision, the Board accepted that if the applicant returns to Pakistan and continues living in his hometown, there is more than a remote or speculative chance that his enemies will be able to locate him and cause him harm.  However, the Board was satisfied at [39] that his enemies will not be able to locate him if he moves to another part of Pakistan which is far away from his hometown.

The deputy judge’s decision

7.  The applicant filed a Form 86 on 20 October 2017 against both the Director’s Decision and the Board’s Decision.  The Form 86 contained the following grounds for judicial review against the Director:

(1)     The Director considered the COI with a “pre-conceived narrative” and had an unfair attitude.

(2)     The Director failed to consider COI favourable to his case regarding police corruption in Pakistan.

(3)     The Director failed to consider properly the issue of state acquiescence (including extended state acquiescence).

(4)     The Director was prejudicial and wrong to find there was reasonable state protection available to him.

8.  The Form 86 contained the following grounds for judicial review against the Board:

(1)     The Board failed to make sufficient inquiry.

(2)     The Board failed to give him sufficient opportunity to arrange relevant evidence.

(3)     The Board was wrong to rule that he had failed to adduce credible evidence to prove his claim.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 43 to 49 of the CALL-1 form:

“43. Although the immigration officer considered the Applicant had over- perceived his risk, he did not reject the Applicant's version as incredible. He still evaluated the situation as the Applicant claimed.

44. The Adjudicator was more liberal than the immigration officer in his interpretation of the Applicant’s situation. The Adjudicator was willing to put aside any doubt of the Applicant's allegations. He accepted the Applicant’s claim of fear of risk as something more than being remote or speculative. However, he considered such risk would only be real if the Applicant went back to live in his home town. The Adjudicator found the Applicant could live away from his home town to avoid his enemies and thus avoid the feared risk. The Adjudicator considered there was reasonable internal relocation in Hyderabad. That was a large city near Karachi (the capital of Pakistan). The Adjudicator reasoned that the Applicant’s enemies would not be motivated to look for the Applicant away from his home town after so many years since the conflicts.

45. The Adjudicator was right to point out that an applicant, even though facing some risk of harm, would not have a real risk if he could be reasonably relocated internally in his country. Reasonable internal relocation means the new place of living would be reasonably safe and the Applicant would not suffer undue hardship.

46. Although Hyderabad was 1,200 km from the Applicant's home town, it was still within Pakistan and therefore much nearer than any other foreign refuge, say Hong Kong. The Applicant at his age and ability could make a living in Hyderabad, which was a reasonable shelter in his case.

47. The immigration officer and the Adjudicator, though by slightly different routes, had come to the same conclusion, i.e., the Applicant's case did not warrant non-refoulement protection.

48. The Applicant raised some complaints against the Director and the Adjudicator (see paras 35-36 above). Those complaints are vague. The Applicant could not provide particulars in court. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find no evidence to substantiate any of those complaints.

49. In my judgement, the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director or the Adjudicator. Both had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Director’s report and the Adjudicator’s report showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

Grounds for appeal

10.  In the Notice of Appeal dated 31 May 2018 the applicant advanced the following grounds of appeal:

(1)     The judge failed to apply the principle of irrationality.

(2)     The judge failed to apply the principle of procedural unfairness.

11.  In his affirmation dated 31 May 2018, the applicant stated that he was refused legal aid.  Without legal advice, his application had little chance of success. He should have been provided with legal assistance in some way.

12.  In his skeleton submissions dated 31 July 2018, the applicant submitted that the Board erred in holding that the applicant could be safely relocated to another city in Pakistan.  He said that even after he had moved to China, his enemies could still locate him and wanted to kill him.  Also, the proposed relocation would not be safe as there had been reported cases of riots involving people with similar ethnicity as the applicant.

13.  The applicant agreed by a letter of 1 June 2018 that the appeal can be heard by two judges.  We heard the appeal on 11 September 2018.

Application for adjournment

14.  At the hearing, the applicant was initially represented by Ms Josephine Chiu. Ms Chiu informed us that she had only been instructed the previous evening, and was instructed to apply for the appeal to be adjourned for three months in order to enable the applicant’s appeal against the refusal of his application for legal aid to be determined.  The applicant had applied for legal aid for the purposes of this appeal on about 22 June 2018, but the legal aid stay was lifted by the Registrar of Civil Appeals on 25 June 2018, as the applicant had previously applied unsuccessfully for legal aid for the proceedings at first instance.  The application for legal aid for this appeal was subsequently refused, but the applicant appealed against the refusal, his appeal having been heard last Friday, 7 September 2018.  Having regard to the history of the matter, the fact that a previous application for legal aid had been unsuccessful, and Ms Chiu’s inability to suggest any reason for thinking that the pending appeal would be likely to succeed, we declined to adjourn the appeal.  Ms Chiu then informed us that her instructions were limited to the making of the application for an adjournment, and that she was not able to make submissions on the substantive appeal.  We therefore invited the applicant to make submissions, but he stated that he had nothing to add to his Notice of Appeal and skeleton submissions.

General principles

15.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 524, CAMP 524/2018 at [14]:

“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 an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the 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: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(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: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) 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). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

16.  The two grounds of appeal in the Notice of Appeal are wholly lacking in particulars and are bound to fail.  As for the ground in the affirmation dated 31 May 2018 based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  The applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

17.  Regarding the arguments found in the applicant’s skeleton submissions, the applicant failed to raise the same in the Form 86.  For the reasons stated above, the applicant ought not be allowed to run these arguments on appeal.  In any event, the Board had found against the applicant on those matters at [31] and [38] of the Board’s Decision, and as pointed out in paragraph 14(1) above, it is not the role of the court below, or of this court on appeal, to act as a court of further appeal from the Board.

18.  The applicant has failed to advance any valid ground of appeal and his appeal must therefore be dismissed.