MEHMOOD KASHIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 470/2020

[2021] HKCA 410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 470 OF 2020

(ON APPEAL FROM HCAL NO 877 of 2018)

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J U D G M E N T

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Hon S T Poon J (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 9 September 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 23 February 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 1 September 2016 and 28 November 2017 rejecting his non-refoulement claim.

2.  The applicant is a Pakistani national.  He entered Hong Kong unlawfully in September 2013 and was arrested by an immigration officer on 3 October 2013.  The applicant lodged a non-refoulement claim on 27 March 2014. 

3.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his former employer(s), the Khan family, who eventually forced him to participate in their illegal activities and to perform forced labour.  The factual background was succinctly summarized by the Judge at [2] – [4] of the Form CALL-1[1]. 

4.  By notices of decision dated 1 September 2016 and 28 November 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[2], persecution risk[3], and torture risk[4], while the latter covered BOR 2 risk[5].

5.  By its decision dated 23 February 2018, the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that the applicant’s factual account of his claimed involvement in illegal activities to be vague, unpersuasive and lacking in detail.  Due to numerous inconsistencies and omissions in his evidence, the Board found that the applicant had not been truthful in his claim and rejected it in its entirety. 

Application for leave to start judicial review

6.  On 21 May 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision which contained no ground for seeking the relief.  In his affirmation in support, the applicant stated that the Immigration Department disregarded his dangerous situation.

The Judge’s Decision

7.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [18] of the Form CALL-1:

“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 adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 56 of 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 finding of the Board.

13.  Furthermore, 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.

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.”

Appeal to Court of Appeal

8.  By a Notice of Appeal filed on 14 September 2020, the applicant appealed against the refusal of leave for judicial review.  His stated grounds of appeal are that he will face hardship if he were to return to his home country; that the Board relied on sources that are not officially recognized, hearsay or outdated; and that the lack of credible sources of information resulted in the Board making groundless speculations. 

Written Submissions

9.  Pursuant to the Court’s directions, the applicant lodged his written submissions on 25 January 2021.  Those submissions consist of general statements of law quoted from case law without identifying how they relate to or apply in this case.  The applicant did not provide any details or particulars in support of his grounds of appeal or as to any specific errors by the Board or the Judge.

Legal Principles

10.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

12.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6]and we will not repeat them here. 

13.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

14.  We heard the appeal on 22 March 2021. At the hearing, the applicant had nothing further to say. 

Discussion

15.  As mentioned earlier, the applicant did not in his Notice of Appeal or written submissions provide any particulars in support of his grounds of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

16.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse findings as to the applicant’s credibility.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

18.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

19.  For these reasons, this appeal is dismissed.