RE RIAZ AHSAN

CACV 520/2018

[2019] HKCA 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 520 OF 2018

(ON APPEAL FROM HCAL 923 OF 2017)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant Mr Riaz Ahsan against the order made by Mrs Justice Campbell-Moffatt (“Judge”) on 12 October 2018 refusing him leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“Board”) given on 15 November 2017 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”).

Background and allegations in support of NRF Claim

2.  The applicant is a national of Pakistan now aged 35.  He was borne and raised in the village of Buddar, Jadda, Gujranwala, Pakistan.  He is Muslin and single. 

3.  In support of the NRF Claim, the applicant alleged that in August 2006, he met and fell in love with a young woman called Asma from the same village.  They pursued the relationship but in secret, it being considered indecent under traditional cultural norm in Pakistan for single persons to engage in a premarital relationship without the consent of both parties’ families so much so that in some cases, those considered to have disrespected such tradition have been subjected to “honour killing”. 

4.  The relationship continued for about a year before one of Asma’s brother, Iftikhar, was tipped off that the applicant was getting close with Asma.  Iftikhar and 3 other brothers of Asma assaulted the applicant and warned him that they would kill him if he talked to Asma again.  The applicant sustained only minor injuries in the attack.  Asma’s brothers then approached the applicant’s father and repeated the same threat on the following day.

5.  Fearing for his life, the applicant left Pakistan for Mainland China on 4 August 2007.  The applicant entered Hong Kong illegally from China on 12 August 2007 and surrendered to the police on 15 August.  He chose not to complain about the assault and threats to the police or other authorities in Pakistan because Iftikhar was himself a police officer.  Nor did he make any real attempt to move to a different village or town as Asma’s family was rich and powerful with political connections throughout the country and the applicant feared that he would not be safe anywhere in Pakistan.

6.  After his arrival in Hong Kong, the applicant had maintained contacts with his family which informed him that Asma’s brothers had continued to enquire about his whereabouts and threaten to kill the applicant if they saw him again.

7.  The applicant further claimed that his relative Afzal who attempted to mediate in the dispute between the applicant and Asma’s family after the applicant fled to Hong Kong was murdered by an assassin hired by Asma’s brothers in 2009 because Afzal had alerted the applicant that Asma’s brothers were trying to lure him back to Pakistan so that they could kill him.

8.  In short, the applicant resists going back to Pakistan out of a fear of being harmed or even killed by Asma’s brothers.

Procedural history

9.  By a Torture Claim Form dated 5 June 2013 (“Torture Claim”), the Appellant initially raised a claim for protection from torture risk under article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“torture risk”)[1]. The Director rejected the Torture Claim on 5 August 2013.  No appeal was lodged.

10.  On 22 August 2013, the applicant submitted the current NRF Claim, which was later supplemented by a NRF supplementary claim form on 20 October 2016.

11.  The applicant was represented by the Duty Lawyer Service before the Director. 

12.  By a Notice of Decision dated 19 December 2016, the Director rejected the NRF Claim on all applicable grounds namely, persecution risk[2], “BOR 3” risk[3] and “BOR 2” risk[4], except torture risk which have previously been disposed of under the Torture Claim without any appeal. 

Appeal before the Board

13.  The applicant appealed to the Board.  A hearing was held on 22 August 2017, at which the Appellant testified and answered questions by the Board with the assistance of an Urdu/Pakistani/ Punjabi/English interpreter.

14.  The Board’s Decision covered all applicable grounds namely, persecution risk, “BOR 3” risk, “BOR 2 risk” and torture risk.[5]

15.  For the detailed reasons explained in [72]-[76] of the Board’s Decision, the Board found the applicant not a credible witness and rejected his account of the circumstances that he claims led to his decision to leave Pakistan for Hong Kong.

16.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 923/2017 on 21 November 2017 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision.  The Form 86, however, did not state any grounds on which relief was sought.  The supporting affirmation filed on the same date did not say much either, only that the applicant’s life was in danger in Pakistan and that he could not go back there.

17.  As the applicant did not request an oral hearing, the Judge considered the application, and refused leave, on the basis of the materials before her.  Her reasons can be found in [12]-[15] of the Call-1 form dated 12 October 2018, [2018] HKCFI 2147:

“12.  Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator with his application in order to obtain leave to judicially review them.

13.  There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

14.  Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Quite the opposite given that the Adjudicator considered the Applicant’s case on all grounds.  Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of the Director’s decision to proceed upon the papers nor of their determinations generally, which were open to them on the facts and eminently reasonable.

15.  In my judgment, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.”

Grounds of appeal

18.  The Notice of Appeal filed herein on 16 October 2018 likewise did not state any ground of appeal but merely asserted that the applicant’s life would be in danger if he were to return to Pakistan and that he has the right to live as a human being.

19.  In his written submission dated 6 November 2018, the applicant again reiterated that his life would not be safe in Pakistan.  He asserted that the Pakistani police was unreliable and the government did not provide protection to ordinary citizens against domestic violence.

20.  The applicant appeared in person at the hearing of the appeal on 25 February 2019.  Save reiterating that he was still under threat in Pakistan and that he preferred to stay in Hong Kong, he had nothing to add to his grounds of appeal or written submission.

Discussion

21.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

22.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

23.  As summarised above, the applicant has, before the Judge and before us, merely repeated that his life would be in danger if returned to Pakistan.  The question whether the applicant would be at such risk is a question of fact within the province of the Board (after the Director).  The Board heard the applicant.  It provided detailed reasons in [72]-[76] of its decision, explaining why it did not accept the applicant’s testimony of the circumstances alleged by him as giving rise to a risk of harm at the hands of Asma’s family.  Those reasons cannot be faulted. The applicant did not in the Form 86 point to any error of law, procedural unfairness or irrationality in such finding by the Board.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.  The applicant did not in the notice of appeal before us identify any error of law by the Judge, any relevant matter that she had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

Disposition

24.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.