RE SHAHZAD

CACV 28/2021

[2021] HKCA 1191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 28 OF 2021

(ON APPEAL FROM HCAL 2312 OF 2018)

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge CP Pang (“the Deputy Judge”) set out in the Form CALL‑1 dated 21 January 2021 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2021] HKCFI 127.

2.  The intended judicial review, as stated in the applicant’s Form 86 filed on 23 October 2018, is against the decision of the Director of Immigration (“the Director”) dated 1 September 2016 (“the Director’s First Decision”) rejecting the applicant’s non-refoulement claim.

3.  The applicant filed his Notice of Appeal on 28 January 2021.  He also lodged his written submissions on 12 July 2021 as directed by the Registrar of Civil Appeals.

A.     Background

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 18 March 2016 and was arrested on the same date.  He lodged a non-refoulement claim on 23 March 2016.

5.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s First Decision, and paragraphs 23 - 34 of the decision of Torture Claims Appeal Board / Non‑refoulement Claims Petition Office dated 11 October 2018 (“the Board’s Decision”).

6.  The applicant claimed that he would be harmed or killed by his paternal uncle Akram due to a land dispute if refouled.  The applicant claimed to own several pieces of land in December 2015.  However, Akram demanded for the land from him but he refused. Thereafter, Akram, along with other members of the Pakistan Muslim League (Narwaz), came to the applicant’s house to threaten him.  Later, on 15 January 2016, while the applicant was in the polling station with his father and maternal uncle Aslam, Akram again came to demand the land to be given to him and also shot Aslam to death.  The applicant’s report of the incident made to the police was of no avail.  Out of fear, he fled to Hong Kong for protection.

B.     The Director’s Decisions and the Board’s Decision

7.  The Director assessed the BOR3 risk^[1], the persecution risk^[2], and the torture risk^[3] in the Director’s First Decision.  By way of a decision dated 23 March 2017 (“the Director’s Second Decision”), the Director also assessed the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

9.  The applicant appealed the Director’s Decisions to the Board.  A hearing for the appeal was held on 6 December 2017, during which the applicant answered questions from the Board with the assistance of an interpreter.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

10.  The Board reminded itself of the applicable legal principles.  It found that the applicant provided inconsistent, vague and implausible accounts of his claim and thus found him not to be a credible witness (paragraphs 48 - 54 of the Board’s Decision).  In any event, the Board considered the alleged land dispute, and found that it could only be a localized one and internal relocation was available to the applicant (paragraphs 55 - 61 of the Board’s Decision).  Thus, the Board dismissed his appeal.

C.     The Deputy Judge’s Decision

11.  The applicant filed a Form 86 on 23 October 2018.  In his Form 86, he only listed the Director’s First Decision as the decision under challenge.  He did not request for an oral hearing and he did not advance any grounds of review in his Form 86 or supporting affirmation.

12.  After considering the documents, the Deputy Judge treated the applicant’s leave application as against both the Director’s Decisions and the Board’s Decision and refused to grant him leave to apply for judicial review for the reasons set out at [12] ‑ [27] of the Deputy Judge’s Decision:

“Application for leave to apply for judicial review

12. The applicant filed a Form 86 on 23 October 2018 for leave to apply for judicial review of the decision of the Board.

13. No request for oral hearing has been made. The application is therefore considered on the papers.

14. In the Form 86 the applicant did not name the proposed respondent, but he named the decision dated 1 September 2016 (which is the date of the first decision of the Director) as the decision under challenge. In the affirmation in support, again he did not name the respondent and stated that ‘I would like to reject and set aside the decision made by immigration department…’ However, he attached with it the decision of the Board. In the confusing circumstances, I will treat his application as against both decisions of the Director and the decision of the Board.

Discussion

15. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

16. Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. The application to challenge the decisions of the Director would be out of time and the applicant did not ask for extension of time or give reason for the delay. There is no good reason to give extension of time.

17. Further, when the applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decision and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decisions of the Director. This decision will only focus on discussing the Board’s decision.

18. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found him to be an incredible witness. The Board rejected his account of primary facts based on the major inconsistencies and contradictions in his evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds. In any event, the Board found that the applicant could relocate to another area within Pakistan.

19. As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

20. The applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

21. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

22. The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility with detailed reasons set out in its decision. I do not find any reasonably arguable basis to challenge the findings of the Board.

23. Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

24. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

25. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

26. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

27. Accordingly, leave to apply for judicial review is refused.” (emphasis added)

D.     Grounds for appeal

13.  Whilst the applicant set out 11 paragraphs in his Notice of Appeal in support of the appeal, his grounds of appeal are effectively that he was not provided with language and legal assistance.  In the applicant’s written submissions, he further submitted that (a) the Board erred in making a finding on his credibility when the Director did not do so; (b) he did not have language and legal assistance.

14.  At the hearing, he again emphasized the lack of language and legal assistance when he appeared before the Board.

E.     Discussion

15.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  They can be summarized as follows.

16.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an 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 determining 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 has made errors of law or failed to take into account relevant matters already placed before the court or was otherwise plainly wrong.

18.  Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.  Bearing these principles in mind, we are of the view that this appeal has no merit.

21.  First, as mentioned above, the applicant did not advance any ground of judicial review before the Deputy Judge.  Hence, none of the complaints made against the Board’s Decision as now stated in Notice of Appeal and written submissions were put forward in the court below.  They are therefore new.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)]. On this basis alone, we will dismiss this appeal.

22.  Second, and in any event, his arguments are devoid of merits:

(1)     The alleged lack of language assistance could not advance his appeal any further.  It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  Further, we note that the court documents filed in this appeal and in the court below are in English.  It is thus clear that either the applicant is himself conversant with the English language or he has access to language assistance of his own if he finds it necessary.  There is therefore nothing in this complaint.

(2)     As to the lack of legal assistance, this Court has repeatedly emphasized that a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  Further the applicant was legally represented before the Director, and we note that the applicant was able to file his written submissions which identified alleged errors of the Board’s Decision.  It is therefore clear that the applicant was not in any way prejudiced.

(3)     As to his complaint that the Board should not assess his credibility since the Director did not do so, this argument is entirely misplaced.  It is well-established that the Board has the power to reconsider the merits of the applicant’s non‑refoulement afresh: A v Director of Immigration (unreported, HCAL 69/2012, 8 July 2014), at [98] - [100].  This is again not a viable ground of appeal.

23.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.     Disposition

24.  For all these reasons, we dismiss the appeal.