RE RAZA KASHIF

CACV 359/2022

[2023] HKCA 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 359 OF 2022

(ON APPEAL FROM HCAL 2596/2018)

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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 To (“the Judge”) given on 8 August 2022 refusing leave to the applicant 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 (“the Board”) dated 12 October 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 5 December 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 9 September 2016, and surrendered himself to the Immigration Department on 12 September 2016.  He thereafter raised a non-refoulement claim on 11 November 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by supporters of the Pakistan Muslim League. The details of the applicant’s claim have been summarised by the Judge at [5] to [12] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 5 December 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 23 May 2018.  The Board found, on the facts and evidence, that any risk of harm to the applicant was low, “far-fetched and fanciful”.  The applicant’s appeal was dismissed by the Board’s decision dated 12 October 2018 (i.e. the Board’s Decision).

The Judge’s decision

6.  The applicant filed a Form 86 on 19 November 2018 seeking to judicially review the Board’s Decision but did not set out any grounds for review.

7.  In his supporting affirmation filed on the same date, the applicant deposed:

“I would like to apply for judicial review against the decision dated 12-10-2018. The decision is not fair and unreasonable. My life is in danger in my home country. I might get killed if I send back to my country. Please kindly reconsider the request.”

8.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [18] and [19] of the CALL-1 Form: 

“18. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board found the Applicant not credible and rejected his evidence about the death of his cousin and the attack on him while he was on his way to court to testify. On the basis of the rest of the evidence accepted by the Board, it found that the risk of harm which the Applicant would face on his return to Pakistan to be low. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

19. For the above reasons, leave to apply for judicial review was refused.”

Grounds for appeal

9.  In the Notice of Appeal filed on 1 September 2022, the applicant stated:

“I disagree with the decision made by [the Director] and as well of [the Board]. I do not think my case [was] determined fairly.”

10.  In his written submissions dated 6 December 2022, the applicant repeated his disagreement with the Board’s Decision, as well as complaining that he was never provided with “proper legal and language assistance”.

11.  We heard the appeal on 1 February 2023.  The applicant appeared at the hearing but had nothing to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

12.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

13.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board had erred in law procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

15.  As to the applicant’s complaint of a lack of language assistance, we note that he has had assistance from an interpreter and a lawyer from the Duty Lawyer Service (“DLS”) for the purpose of preparing his Non-refoulement Claim Form, which was submitted to the Director.  The applicant was also aided by an interpreter at the hearing before the Board.  Further, the applicant was able to (either by himself or with assistance of others) lodge submissions in comprehensible English with this court in support of the present appeal.  We therefore see no merit in this complaint.

16.  The applicant also contends that he did not have the benefit of legal representation.  As we noted above, he was assisted by a lawyer from the DLS in the initial stage of his claim.  This court has repeatedly held that it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.