HAFIZ ALI RAZA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMNT CLAIMS PETITION OFFICE

CACV 148/2022

[2022] HKCA 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 148 OF 2022

(ON APPEAL FROM HCAL NO 601 OF 2019)

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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 7 April 2022, Campbell-Moffat J (“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 22 February 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 27 April 2018 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 19 April 2022, the applicant filed a Notice of Appeal against the Judge’s decision. 

3.  In compliance with the directions of the Registrar of Civil Appeals given on 31 May 2022 and Practice Direction 4.1, the applicant lodged his skeleton argument on 5 July 2022. 

Background

4.  The Applicant is a Pakistani national.  He entered Hong Kong illegally on 10 April 2015 and was arrested by police on 17 July 2015.  On 19 July 2015, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or killed by some people of the Shia sect due to a religious dispute.  The factual background of this case is succinctly summarized by the Judge in [4] and [5] of the Form CALL-1 ([2022] HKCFI 980).

5.  By a Notice of Decision dated 27 April 2018, the Director assessed the applicant’s claim on all applicable grounds being BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

6.  The applicant lodged an appeal to the Board against the Director’s decision.  The appeal was heard on 21 September 2018 and by the decision dated 22 February 2019, the Board rejected the appeal/petition and confirmed the Director’s decision.  Having considered the applicant’s evidence, for the reasons set out at [31] to [37], the Board found that the applicant’s evidence was implausible, unreliable and inconsistent: see [32].  The Board was not convinced that the applicant came to Hong Kong because of the alleged threat to kill or harm him by his religious opponents or even if the incident of conflict had actually taken place as alleged or at all.  The Board rejected the centerpiece of his story (which was a fight between him and people of the Shai sect), and found him dishonest and unreliable as he changed his story a number of times as to when he went to Lahore after recovering from his injuries. It concluded that he is not a genuine claimant. Further, there was no evidence to suggest state instigation or acquiescence [38] – [43] and relevant country of origin information suggested that there is reasonable state protection [44].  In any event, internal relocation is a viable option as he had lived in Lahore without incident [65] – [70].  For the aforesaid reasons, his non-refoulement claim failed on all applicable grounds. 

Decision of the court below

7.  On 4 March 2019, the applicant filed a Form 86 for leave to apply for judicial review of the Director’s and Board’s decisions; however, he did not provide any ground for relief in his application. 

8.  The applicant did not request for an oral hearing and the Judge disposed of the application on paper. By the decision dated 7 April 2022, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons for the refusal were set out at [11] – [12] of the Form CALL-1 as follows:

“11. There were no grounds of review. The applicant seeks 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 show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007)  10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave. They do not.

12.  Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, 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.  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 his determination, which was open to him on the facts and eminently reasonable[5].  This case was lacking in any merit whatsoever.”

Appeal to this Court

9.  On 19 April 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he stated:

“I am disagree with the decision made by the [Director] as well as [the Board]. I do not think my case has been determined fairly.”

10.  In his written submissions, he advanced the following grounds:

(1)  He disagrees with the decisions made by the Director and the Board as they were not determined fairly.

(2)  He did not understand the decisions and judgment made in his case and there was no assistance on that.

(3)  Without fully understanding how his case was determined, it is not easy to appeal against the decision.  There should be a proper and fair mechanism to assist unpresented litigants to understand more about their claims. 

(4)  He was never provided with proper legal and language assistance.  With his limited resources and language capacity, it is difficult to appeal against the decision and it amounts to procedural unfairness.

(5)  The authorities should take into account the procedural unfairness in that it is the policy to dispose of the non-refoulement claims quickly.

(6)  He was not fully informed of his rights or given the opportunity to be heard and he was not granted the necessary assistance.

(7)  The discriminating act of the authorities towards non-refoulement claimants is unacceptable and detrimental to the spirit of the judicial system.

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 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 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.

(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.  The applicant failed in his Notice of Appeal and written submissions to provide any valid ground of appeal against the Judge’s decision or to identify any specific errors or any other specific potential grounds for reversing the Judge’s decision. 

13.  The high standard of fairness does not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages of the process, see Re Zunariyah [2018] HKCA 14.  The applicant has already had legal representation provided by the Duty Lawyer Service during the proceedings before the Director.  It is not reasonably arguable to challenge the fairness of the process due to the lack of legal representation during the hearing before the Board or the court below. 

14.  The high standard of fairness also would not require that an interpretation service be made available at any time the applicant desired.  In any event it is further noted that all the court documents and written submissions from the applicant have been written in English, indicating either that the applicant is familiar with the English language or that he has access to such language assistance as needed.

15.  The Board had rejected the applicant’s case on the issue of credibility as he only made bare assertions without any objective proof of his assertions and his evidence was inconsistent and implausible.  The Board did not accept that the applicant was or is subject to any risk of harm in his home country.  On the evidence before the Board it was open to it to reach its conclusion.  As with the judge, we see no valid public law ground to intervene with the Board’s decision.

16.  Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in her analysis and she was entitled to refuse leave. 

Order

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