BAIG REHMAN v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 312/2021

[2021] HKCA 1357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 312 OF 2021

(ON APPEAL FROM HCAL NO 1950 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 17 July 2020, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 16 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 7 February 2018 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  The applicant was late filing the Notice of Appeal by 3 days.  In light of the minimal delay and COVID, the Judge granted an extension of time to the applicant on 10 September 2020 to file the appeal within 14 days of his order (ie by 24 September 2020).  However, the applicant failed to do so.  On 3 February 2021 he filed a summons for extension of time supported by an affirmation.  On 3 June 2021, the Judge granted a further extension of time of 14 days.  On 15 June 2021, the Notice of appeal was filed.

Background

3.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 29 January 2016 and surrendered to the Immigration Department on 15 February 2016.  On 29 June 2019, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his cousin Arshad and his associates over a land dispute in his home village.  The factual background of this case was succinctly summarized by the Judge in [2] – [7] of the Form CALL-1 ([2020] HKCFI 1444).

4.  By a Notice of Decision dated 7 February 2018, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

5.   The applicant appealed the Director’s decision to the Board. He attended an oral hearing on 9 July 2018.  For reasons given in its decision of 16 August 2018, the Board dismissed the appeal.  In its decision the Board found the applicant’s dispute with his cousin Arshad was a private land dispute, and the only violence against him was an attack in May 2015 when Arshad and his men came to the applicant’s house to seize the title deeds of the land in dispute, and during the attack, the applicant was slapped and received some verbal threats.[5] The applicant said he had moved to Karachi after the incident and encountered no further trouble from his cousin.[6]  The applicant had sought help from the police and on his evidence they did help, paying a visit to Arshad on the same day, who said he would negotiate the matter with the applicant.  In the absence of any state / official involvement[7], and since internal relocation within Pakistan such as Karachi was a reasonable and viable option[8], the Board found that the applicant had failed to establish his case on all applicable grounds.

Decision of the court below

6.  On 17 September 2018 the applicant filed a Form 86 for leave to apply for judicial review of both the Director’s and the Board’s decisions.  In his Form 86 and supporting affirmation of the same date, he merely recited his claim and complained that he had been aggrieved by the decisions of the Director and the adjudicator as being unreasonable in that they failed to take into account “many things and issues”.

7.  The Judge heard the application on 21 January 2020, the applicant having failed to attend despite the fact that the notice of hearing had been sent to the address he had supplied and which he had continued to use thereafter for correspondence with the court until 3 February 2021.  In his decision dated 17 July 2020, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [15] of the Form CALL-1 as follows:

“12. On 17 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but both in his Form and his supporting affirmation of the same date he merely recited his claim and complained that he has been aggrieved by the decisions of the Director and the adjudicator as being unreasonable in that they failed to take into account “many things and issues” but without providing any particulars or specifics or elaborations as to what those things and issues were or how the Director or the adjudicator had erred in their decisions, nor did he attend the scheduled hearing of his application, for which he later wrote to the court claiming not to have received the notice of the hearing in the mail, but upon ascertaining from the records that the notice was indeed sent both by ordinary post and registered post to his last reported address but only the registered post had been returned but marked “Unclaimed”, and in the absence of any further supporting evidence from the Applicant, I was not satisfied that the Applicant had provided any good or valid explanation for his non-attendance at the scheduled hearing, and therefore decided to proceed to deal with his application in his absence and on papers. In the circumstances and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13. 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.

14. The fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  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.”

Appeal to this Court

8.  As mentioned previously, the applicant filed a Notice of Appeal on 15 June 2021.

9.  In his Notice of Appeal, he advanced the following grounds:

(1)   The Court did not exercise caution and diligence in handling his case and there was procedural unfairness.[9] (Ground 1)

(2)   There was a lack of language and legal assistance.  As he was unable to read and write in English and the Judge’s decision was not translated and explained to him, it was difficult for him to prepare the appeal without any assistance.  He further requested the Court for translation and language assistance and an oral hearing with an interpreter arranged for him and that he would reserve his right to provide further submissions within reasonable time upon having the determinations read back to him.[10] (Ground 2)

(3)   It is procedurally unfair that there is no other revenue for a non-refoulement claim to seek an appeal against a decision made purely against credibility.[11] (Ground 3)

10.  In compliance with the Court’s directions of 2 July 2021, the applicant lodged his written submissions on 16 August 2021.  In his written submissions, he repeated his complaints of the lack of legal and language assistance as mentioned in the Notice of Appeal. He further added that the Court failed to see the errors of the Director’s and the Board’s decisions regarding the risk of harm faced by him and did not properly explain how he could easily relocate.  At the hearing before this court, he had nothing to add.

Legal principles

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)   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 on appeal, which operates as a re-hearing, 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.  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.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)   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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.  Ground 1 is a vague and general accusation without any specific grounds or elaboration.  The Judge had duly set out the relevant factual background of his case and the findings of the Board’s decision and then gave his analysis and reasons for refusing to grant leave to apply for judicial review. We found nothing amiss from his decision.  Ground 1 simply cannot stand.

13.  Ground 2 is devoid of merit.  The Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor in the judgment in FB v Director of Immigration HCAL 51/2007 prescribes that a non-refoulement claimant is entitled to an absolute right to free legal representation at all stages of the proceedings: 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 Zafar Muazam [2018] HKCA 176.   

14.  Regarding the applicant’s complaint of lack of language assistance, we note that all the court documents in relation to the judicial review application and this appeal were written in English and well expressed, indicating that either the applicant is familiar with the English language or that he has access to such language assistance as was needed.

15.  Further, the Court had provided interpretation service and a reasonable opportunity to make his written and oral submissions for the present appeal.

16.  Ground 3 is misconceived.  As mentioned in [5] of this judgment, the Board did not rule against the applicant’s case on credibility but on the ground that his claim only involved a private land dispute without any state elements, that he could relocate, and that he failed to establish his case on all applicable grounds. 

17.  The Board had explained clearly that as the applicant had moved safely to Karachi for a period of 8 months before he left Pakistan and without any evidence that Arshad has resources to locate him all over the country so as to harm him, he may safely relocate to Karachi or other large cities to avoid Arshad.   The judge was entitled to find that there were no errors in the Board’s findings. 

18.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

19.  For the above reasons, this appeal is dismissed.