RE AFZAL AMIR

CACV 213/2020

[2021] HKCA 244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 213 OF 2020

(ON APPEAL FROM HCAL NO. 1449 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 9 June 2020 in HCAL 1449/2018 refusing 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 17 July 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 30 October 2017.

Background

2.  The Applicant is a national of Pakistan who entered Hong Kong illegally on 14 August 2014 and was arrested by police on 19 September 2014.  He was then transferred to the Immigration Department for investigation and on 21 September 2014, he lodged his non-refoulement claim by way of written representation on the basis that if he were to return to Pakistan he would be harmed or killed by his business partners over their business disputes.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 508. 

3.  By the Notice of Decision dated 30 October 2017, the Director decided against the applicant’s claim.  The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed to the Board.  After an oral hearing on 22 January 2018, the Board dismissed the appeal on 17 July 2018. For the reasons stated in [23] to [32] of the decision, the Board found that the applicant did not have any knowledge or interest in the alleged business and he could not explain the alleged enmity with his business partners.  As such the Board did not find the applicant to be a credible witness and concluded that none of his assertions could be given any credence.  For the aforesaid reasons, the Board dismissed his non-refoulement protection claim on all applicable grounds.

The Judge’s decision

5.  On 24 July 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decision of the Board. He did not provide any meaningful ground for seeking relief in his Form 86 save for repeating that he would be killed by his business partners if returned to Pakistan, and that it is “a travesty of justice and contrary of natural law and spirit of common humanity” to refuse his claim and to evict him out of Hong Kong.  The applicant did not provide any particulars or specifics or elaboration of his claim.

6.  The Judge heard the case on 7 November 2019 and by the CALL-1 Form of 9 June 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [10] to [13] of the CALL-1 Form:

“10.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 21 – 32 of its decision with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.  

12.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

13.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

The Appeal

7.  On 23 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  He did not provide any meaningful ground of appeal except by saying that he did not get fair justice and he wanted to appeal the Judge’s decision.   

General Principles

8.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP 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 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 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

9.  The applicant did not provide any ground of appeal to pinpoint any error of law in the Judge’s decision and what was stated in the Notice of appeal does not amount to viable ground of appeal. 

10.  The Board rejected the applicant’s claims for non-refoulement protection primarily based on its assessment that the applicant’s evidence was inconsistent and that he was unable to provide a minimally coherent account of his story and the Board could not give any credence whatsoever to his case.  Such findings are within the province of the Board, and the Court will not interfere with such assessments unless they are reversible on public law grounds which we found none in this case. 

11.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and his decision is without flaw.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.