FAHAD SHAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 403 /2019

[2019] HKCA 1405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 403 OF 2019

(ON APPEAL FROM HCAL NO 639 OF 2018)

________________________

________________________

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam on 22 August 2019^[1] refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Pakistan of 30 years old.  He sneaked into Hong Kong on 19 April 2013 and was arrested by the police on 14 May 2013.  He raised a non-refoulement claim on 15 May 2014.  He claimed that he would be harmed or killed by members of the Taliban as he was a paid worker of the Awami National Party (“the ANP”) which is strongly against the Taliban.

The Director’s decision

3.  By a Notice of Decision dated 13 February 2017, 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 did not accept that there is a real risk that the applicant will be subjected to any serious harm upon his return to Pakistan.  The Director also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, 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 9 November 2017.  The Board found that whilst the applicant might have been at personal risk in 2013, it is unlikely that he would now be at personal risk in his home area as the situation has changed.  The Pakistani government has taken strong action against the Taliban, the Taliban have been weakened, they are not attacking individuals and the killing rate has declined.  The Board also considered that the applicant could avoid the risk, if any, by internal relocation within Pakistan. Therefore, the Board rejected the appeal on 15 March 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and supporting affirmation on 13 April 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

The judge’s decision

7.  The judge applied the approach in Re Moshsin Ali [2018] HKCA 549 at §45.  As the decision of the immigration officer is not a decision that is susceptible to judicial review within this administrative structure once an appeal to the Board is pursued by a claimant, the judge dealt with the application in relation to the Board’s decision only. 

8.  The judge held that the applicant’s complaints are not reasonably arguable for reasons stated in paragraphs 28 to 32 of his decision dated 22 August 2019.  The judge also found that the adjudicator had proper basis for his decision which was not Wednesbury unreasonable, the adjudicator had made no errors of law and there was no procedural unfairness. As the applicant has no realistic prospect of success in the sought judicial review, the leave application was refused.

The grounds of appeal

9.  The applicant filed a Notice of Appeal against the decision of the judge on 2 September 2019.  The grounds of appeal stated therein may be summarized as follows:

(1)  The judge failed to consider the significance and level of unfairness for the lack of language assistance (Ground 1).

(2)  The judge erred in determining that the applicant could not seek leave to apply for judicial review against the Director’s decision (Ground 2).

(3)  The judge erred in finding that the adjudicator was correct and affirming the adjudicator’s decision (Ground 3).

Legal Principles

10.  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.

11.  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 Country of Origin Information (“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.

12.  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 and disposition

Ground 1

13.  The applicant submitted that there has been no assistance in interpreting the content of the hearing bundle and the judgment of the judge has not been read to him.  He alleged that it is uncertain as to whether there was evidence used to his detriment by the authorities in coming to their assessment as a result of his language incapability and therefore it is unfair.  He also criticized the judge for “intentionally depriving” him of the right to seek further avenues of appeal as the judge did not provide translation of his judgment dated 22 August 2019.  

14.  In the present case, interpreter services were provided at hearings at every stage 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: Re Gurung Sagar [2019] HKCA 658 at §12. 

15.  Furthermore, all the documents lodged in court including the affirmation in support of the leave application, the notice of appeal and the skeleton submission lodged by the applicant were written in English.  This indicates that either the applicant is himself conversant with the English language or he has access to language assistance of his own if needed. 

16.  The filing of the notice of appeal is also self-evident that the applicant’s right to seek further avenue of appeal has not been deprived of.

17.  Therefore, the ground relating to the lack of language assistance has no merit.  

Ground 2

18.  As the decision by the Board has superseded the decision of the immigration officer and represents the final decision on the claim at the end of its processing, the judge is correct in deciding that the applicant cannot seek leave for judicial review against the Director’s decision according to the case of Re Moshsin Ali.  This ground is bound to fail.

Ground 3

19.  The applicant submitted that he had firsthand experience of the trauma as a result of the Taliban’s torture and contended that just because they are relatively subdued does not mean they are not harmful.

20.  This is a repetition of his submission to the judge and was addressed by the judge in the judgment at paragraphs 30 to 32.

21.  The Director assessed that the level of risk of harm from the Taliban upon the applicant’s return to Pakistan is low because of the low intensity of previous ill-treatment (as the applicant was not hurt in the attack in 2013).  Besides, a significant part of the applicant’s claim was based on hearsay instead of sufficiently objective and reliable evidence or real and personal experience.  Both the Director and the Board had considered a wide range of the COI including those which corroborate some of the applicant’s assertions.  The Board found, among other things, that the terrorist activities in Pakistan have sustained a declining trend in recent years and the situation has changed. In light of the more recent developments, the Board did not think it could be said that the applicant is at any real risk of being targeted in his home area because of his membership of the ANP. All these findings were based on the available COI.  In our view, the Director and the Board had adhered to the high standards of fairness as required in assessing the applicant’s claim.

22.  Applying the established principles as mentioned above, the primary decision makers tasked with the responsibility of assessing the evidence and the COI materials are the Director and the Board.  The court hearing an application for judicial review will not intervene unless there are errors of law or procedural unfairness or irrationality in the decision of the primary decision makers.

23.  The applicant has failed to show that there are errors of law or procedural unfairness or irrationality in the decision of the Board such that his application for judicial review should be entertained.  He has failed to show 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. 

24.  None of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge. 

25.  We dismiss the appeal as there is no merit in any of the grounds of appeal and no prospect of success in the intended application for judicial review. 

[1] [2019] HKCFI 2057

[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.