RE RAJA WAQAR KHAN

CACV 54/2019

[2019] HKCA 772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 54 OF 2019

(ON APPEAL FROM HCAL NO. 1039 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Lung (“the Judge”) on 23 January 2019, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 26 February 2019, the applicant was directed to lodge his skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 28 May 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 167.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Pakistan. He entered Hong Kong illegally on 7 July 2013.  On 12 July 2013, he was arrested by police.  On 29 November 2014, he lodged his non-refoulement claim. His claim was based on his fear that he would be harmed or even killed by the drug selling people and/or their subordinates who were related to Pakistan Muslim League (“PML”).  The applicant alleged that these people had approached him and asked him to sell drugs in secondary schools, but he refused and reported the matter to the police, who took no action.  The applicant further alleged that the PML people had, on a number of occasions, beaten him up and threatened to kill him. 

5.  By a Notice of Decision dated 24 November 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.  

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 9 April 2018, the Board dismissed the appeal on 20 April 2018.   The Board found inconsistencies in the applicant’s account of being pursued by a gang pressing him to sell drugs and refused to attach any credence to his claim.  There was no evidence suggesting that the gang was a public official or acting with official acquiescence nor if the applicant had ever been inflicted with severe physical or mental injury.  He might avoid any harm in his local area by relocation safely and reasonably to other parts of Pakistan.  For the aforesaid reasons, the applicant’s appeal was dismissed on all applicable grounds.

7.  On 7 June 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  In the supporting affirmation filed on the same day, the applicant advanced the following grounds for his intended challenge:

(i)   the process of non-refoulement screening did not meet the higher standard of fairness as laid down by the Court of Final Appeal in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187;

(ii)   lacking of legal assistance;

(iii)   lacking of language assistance: the appeal bundle and the Board’s decision were not properly translated to the applicant;

(iv)   lacking advice on the judicial review application; and

(v)   failing to explain to the applicant how the Director weighed and applied the Country of Origin Information (“COIs”) in assessing his case.

The Judge’s decision

8.  On 23 January 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [12] – [18] for his refusal to grant leave:

“DISCUSSION

12. At the hearing before me, I had made enquiry with the applicant. He was at pain to explain to me that the interpreter at the hearing before the Board was not providing good service. He could understand some English. He knew that the interpreter was not interpreting all he said to the Adjudicator. I asked him if he had told the Adjudicator about this. He said he had. He said that the Adjudicator took no action to redress his concern. I simply disbelieve his statement because I cannot think of any reason for the Adjudicator to behave in this way.

13. The most important issue for the Adjudicator was whether the applicant came to Hong Kong for international protection. Having considered the evidence from the applicant, he did not believe the applicant. He is quite entitled to come to his conclusion after considering the evidence. The Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers”.

14. Ground (1) is his opinion without evidence to support. It fails.

15. He had obtained legal assistance from the Duty Lawyer Scheme when he went through the Unified Screening Mechanism, the fact that he had no legal representation at the appeal hearing has been held by the Court of Appeal in Re: Ahmea Syed Rafiq CACV 272/2007 [2018] HKCA 78, 20 March 2018, to be not a ground for judicial review. Ground (2) fails.

16. His allegation that he did not understand the Director’s Decision and the Board’s Decision is not believable because he was able to raise the issue of the Director having adopted some of the COIs for him and some against him, questioning the way the Director had exercised his balance. This query demonstrates that he understands the contents of the Director’s Decision quite well. Grounds (4) and (6) fail.

17. It is not necessary of the Director or the Adjudicator to demonstrate their ways of thinking or analysis of the evidence before them. The applicant is unable to identify the error they have committed in their analysis of the evidence. Ground (5) fails.

CONCLUSION

18.   For the reasons above, I find that the applicant’s application for judicial review has no reasonable chance of success. I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”

The Appeal

9.  The applicant filed the Notice of Appeal on 1 February 2019 and provided the following ground of appeal:

“I would like to reject and review the decision made by the court. They disregard my dangerous situation.”

Discussion

10.  The ground of appeal was vague and without substance and is not a valid ground of appeal.  As mentioned in paragraph 6 of this judgment, it was the Board’s findings that the applicant’s case was inconsistent and incredible and there was no evidence suggesting the applicant had suffered any physical or mental pain that attained the minimum level of severity.  The Judge had rightly found at [13] of the CALL-1 Form that the Board was entitled to reach its decision after considering the applicant’s evidence and the court would not usurp their roles as primary decision makers, see Re Ali Haider CACV 8/2018, [2018] HKCA 222.  We agree with the Judge’s findings and find nothing amiss from his decision.

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