RE ASHFAQ MUHAMMAD

CACV 465/2020

[2021] HKCA 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 465 OF 2020

(ON APPEAL FROM HCAL NO. 663 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 3 September 2020^[1] refusing him leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 20 March 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) of 23 June 2017 rejecting his non‑refoulement protection claim. The appeal is dealt with on paper without a hearing due to the non-compliance with the direction on the lodging of a skeleton argument as mentioned below.

2.  The applicant is a national of Pakistan of 63 years old.  He entered Hong Kong illegally and was arrested by the police on 8 July 2015.  He raised a non-refoulement claim on 4 November 2015 based on fear of being harmed or killed by his brother-in-law who disapproves of the applicant’s marriage with his sister.

3.  The applicant’s claim was set out in detail in the Director’s decision at [6] and the Board’s decision at [7] to [24] and summarized by the Judge at [2] to [5] of Form CALL-1.  In gist, the applicant claimed that after he married his wife, who is his cousin, in 1986, his brother-in-law became very hostile and often verbally threatened and abused him because he had wanted his sister to marry another cousin.  In 2007, someone set fire to the applicant’s house causing him to sustain severe burns to his legs and arm.  The applicant believed it was the act of his brother-in-law, but he did not report him to the police because his brother-in-law is well connected to the Pakistan Muslim League Newaz, which was the largest political party.  The applicant and his family moved away from their home village, but his brother-in-law continued to harass him every time he ran into him.  Concerned about his safety, the applicant went to mainland China from Nawaz where he sneaked into Hong Kong.

4.  By his decision dated 23 June 2017, the Director rejected the applicant’s non-refoulement claim on the torture risk^[2], BOR 3 risk^[3] and persecution risk^[4] and BOR 2 risk^[5] grounds.

5.  The applicant appealed to the Board, which heard the appeal on 1 March 2018.  The applicant gave evidence at the oral hearing and had answered questions from the Board. 

6.  By its decision dated 20 March 2018, the Board dismissed the appeal. The Board accepted that the applicant was severely injured during a fire to his house, but found no reliable evidence, other than the applicant’s speculative belief, to prove that it was his brother-in-law who set fire to his house.  The Board noted that other than verbal threats, the applicant’s brother-in-law had not inflicted ill-treatment or attack on him prior to the fire.  The Board further considered that it was in any event a private dispute with no state involvement, and police and state protection was reasonably available.  The Board concluded that the applicant failed to establish his claim under any of the applicable grounds.        

7.  The applicant filed a Form 86 and an affirmation on 18 April 2018 to seek leave to apply for judicial review against the decision of the Board.  The Form 86 did not set out any grounds for seeking relief.  The affirmation merely stated that the applicant could not go back to his country as his life is not safe there, and asked that he be allowed to stay in Hong Kong until his problem is solved.

8.  The applicant did not request for an oral hearing.  The Judge dealt with the leave application on the papers.  By his decision dated 3 September 2020, the Judge held that the intended judicial review has no reasonable prospect of success and refused to give leave to apply for judicial review.  His reasons were set out at [11] to [14] of the Form CALL-1 as follows:

“11. 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.

12. In the Applicant’s case, the Board rejected his claim essentially on its findings that whatever threats from his brother-in-law without any official involvement would not come under any of the applicable risks for non-refoulement protection and that state/police protection would be available to him to reduce or negate any such risk for the thorough and detailed analysis and reasoning set out in paragraphs 31 – 46 in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

13. Furthermore, the fact 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.

14.  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.”

9.  On 14 September 2020, the applicant filed a Notice of Appeal to appeal the decision of the Judge.  He stated the following as his grounds of appeal:

(1)  He was not satisfied with the decision because it did not accord with the facts and the reality in his case.

(2)  There was no transparency in the decision.   

10.  On 2 January 2021, the Registrar of Civil Appeals directed the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.  The directions were communicated to the applicant by the court’s letter dated 6 January 2021.

11.  The appeal was scheduled to be heard on 8 March 2021.  The Notice of Hearing dated 19 January 2021 reminded the applicant to lodge his skeleton argument by 8 February 2021 and further warned that should he failed to do so he would be deemed to waive his right to have an oral hearing and the hearing date would be vacated with the hearing being determined on paper.

12.  The applicant failed to lodge a skeleton argument on or before 8 February 2021.  The hearing date was accordingly vacated.  By letter dated 16 February 2021, the court informed the applicant that the hearing date of 8 March 2021 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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. Assessment of evidence and country of origin information materials and risks of harm, availability of state protection and viability of internal relocation are primarily within the province of the primary decision makers.  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 and the process by which the decision was made.

15.  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. 

16.  The matters put forward by the applicant as grounds of appeal in his Notice of Appeal are not viable grounds to reverse the Judge’s decision.  No particulars or details had been provided to support the vague and general complaints made against the Judge’s decision.  In any event, the complaints have no merits because it is not the court’s role in an application for leave to bring judicial review to assess the evidence or risks claimed.  Further, in light of the reasons given by the Judge for his decision, there is no basis for the complaint of no transparency.  

17.  We have examined the decisions of the Director and the Board, and do not discern any errors of law or procedural unfairness or irrationality in the decision of the Board.  We agree with the Judge that the applicant’s intended judicial review has no prospect of success.

18.  For the above reasons, there is no merit in the applicant’s appeal.  We therefore dismiss the appeal. 

[1] [2020] HKCFI 2184

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[5] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.