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CACV 304 /2019
[2019] HKCA 1403
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 304 OF 2019
(ON APPEAL FROM HCAL NO 9 OF 2018)
________________________
| BETWEEN |
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Din Shamas |
Applicant |
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and |
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Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
________________________
| Before: |
Hon Kwan VP and S T Poon J in Court |
| Date of Hearing: |
10 December 2019 |
| Date of Judgment: |
13 December 2019 |
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J U D G M E N T
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Hon Kwan VP (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 21 June 2019[1] refusing leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.
2. The applicant is 28 years old and a national of Pakistan. He entered Hong Kong illegally on 15 November 2015 and was arrested by the police on 2 December 2015. He raised a non-refoulement claim on 5 December 2015 on the basis that he would be harmed or killed by some Sunni Muslims because of religious dispute.
The Director’s decision
3. By a Notice of Decision dated 11 August 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].
4. The Director assessed the level of risk of harm is low as the past experience of the applicant has not attained a minimum level of severity and there is nothing indicating that he will be personally targeted by the Sunni Muslims. The Director also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. Hence, the non-refoulement application was rejected by the Director.
The Board’s decision
5. The applicant attended the hearing of the appeal against the Director’s decision on 21 November 2017. The Board did not accept the applicant’s evidence as the evidence contradicted what he stated in the documents and his answers to the adjudicator’s questions were illogical. The Board held that the applicant manifested an intention to come to work more than his claim for non-refoulement protection. The Board also assessed that state protection and internal relocation alternatives are available in Pakistan based on the available Country of Origin Information (“COI”). Therefore, the Board held that he has not made out a case in respect of any of the 4 applicable grounds and rejected the appeal on 22 December 2017.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation in support on 2 January 2018 to seek leave to apply for judicial review against the decision of the Board.
The judge’s decision
7. The judge held that the Board was entitled to reach the decision based on the evidence and information before it. After considering both the decisions of the Director and the Board, he did not find any error of law or procedural unfairness, or any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim. The application for leave to apply for judicial review was refused by the judge on 21 June 2019 as there is no prospect of success in the intended judicial review.
The grounds of appeal
8. The applicant filed a Notice of Appeal against the decision of the judge on 3 July 2019. The grounds of appeal in his notice of appeal may be summarized as follows:
(1) It is unfair that the judge failed to acknowledge the applicant’s language incapability and his imprisonment. The judge failed to consider the significance of the lack of language assistance to the applicant (Ground 1).
(2) The judge failed to consider the significance of the lack of legal assistance to the applicant (Ground 2).
(3) The judge erred in commenting that “therefore, the procedural irregularity for the screening had been addressed by the adjudicator as the adjudicator had the power to hear the application afresh” (Ground 3).
(4) The fact that there are no other revenues for a non‑refoulement claimant to seek an appeal against a decision made purely against credibility is procedurally unfair (Ground 4).
(5) It is unfair that the court did not hold a hearing for the applicant to give evidence while he was not able to understand the legal process and explain to the court on paper (Ground 5).
(6) It is uncertain as to how the Director would have come to the conclusion that state protection is available if the reforms and improvements have not been implemented successfully (Ground 6).
9. In the leave application, the applicant only stated that the Board’s decision was unfair and unreasonable without providing any particulars or elaboration. He did not raise the specific grounds as the ones set out in the notice of appeal filed in the present appeal.
10. The applicant did not lodge his skeleton argument in time for the hearing of the appeal pursuant to the directions given by the Registrar of Civil Appeals on 30 August 2019. His submission was late by nine days. In the exercise of our discretion, we decided not to vacate the hearing date and hold an oral hearing for this appeal and notified him of the hearing date of 10 December 2019 at 10:30 am by letter dated 25 November 2019.
11. The applicant did not attend the hearing on 10 December. We decided to deal with this appeal in his absence.
Legal Principles
12. 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.
13. 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.
14. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
Analysis
Grounds 1 and 2
15. The grounds pertaining to the lack of language assistance and legal assistance, apart from being new grounds not raised before the judge, are also unmeritorious for the following reasons:
(1) The burden is on the applicant to demonstrate to the judge the existence of the alleged procedural unfairness. There is no basis for the applicant to criticize the judge for not considering these grounds when he did not advance such grounds before the judge in the first place.
(2) Interpreter services were provided at hearings and at the time when the applicant was assisted by duty lawyer. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire.[6]
(3) The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[7]. The applicant already had the benefit of legal representation in presenting his case to the Director.
Ground 3
16. As a matter of fact, in the decision dated 21 June 2019, the judge did not make the comment which was quoted and complained of by the applicant. This ground is totally unfounded.
Ground 4
17. The applicant complained that the fact that there are no other revenues for a non-refoulement claimant to seek an appeal against a decision made purely against credibility is procedurally unfair.
18. In fact, he had already had the opportunity to raise his appeal against the Director’s decision to the Board and such appeal was conducted by way of rehearing. Besides, the decision of the Board is subject to judicial review if the applicant can show that there are errors of law or procedural unfairness or irrationality in it. Thus, this ground is without basis.
Ground 5
19. The applicant contended that it is unfair that the court did not hold an oral hearing for him to give evidence before the judge.
20. Pursuant to Order 53 rule 3(3) of the Rules of the High Court (Cap 4A), the judge may determine the application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application (ie Form 86). In the present case, the applicant did not request an oral hearing in his Form 86[8]. The judge’s decision to deal with the leave application on paper is consistent with the rules and is justified. This ground is without merits.
Ground 6
21. The applicant’s complaint against the Director has not been canvassed at the Court of First Instance and he has not sought leave to put forward this new argument. Moreover, the Director’s decision is not susceptible to judicial review once an appeal to the Board has been pursued and dealt with[9]. Therefore, such new argument will not be entertained by the Court of Appeal and it is bound to fail in any event.
Conclusion
22. The applicant’s claim was rejected by the Board for the main reason that the Board found that he had not been tortured as defined under section 37U(1) of the Immigration Ordinance, he has failed to established BOR 2 risk, the injuries he sustained from the alleged attacks did not attain a minimum degree of severity and the alleged incidents were solely private disputes so his fear of ill-treatment does not fall within the definition of persecution. In other words, the applicant failed to establish his claim under the applicable grounds. He has not put forward any valid arguments with reliable evidence in support to refute such findings of the Board in the leave application before the judge and in the present appeal.
23. For the above reasons, the appeal should be dismissed as there is no merit in the appeal and no prospect of success in the intended application for judicial review.
| (Susan Kwan) |
(S T Poon) |
| Vice President |
Judge of the Court of |
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First Instance |
The Applicant (Appellant), acting in person
[1] [2019] HKCFI 442
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] 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.
[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] 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.
[6] Re Gurung Sagar [2019] HKCA 658 at §12
[7] Re Paswan Shibu Lal [2019] HKCA 249 at §21
[8] The applicant also did not request for oral hearing in the affirmation in support.
[9] Re Moshsin Ali [2018] HKCA 549 at §45
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