MOHAMMAD ZAFRAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 161/2019

[2019] HKCA 921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2019

(ON APPEAL FROM HCAL NO 521 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam on 19 March 2019. By his decision, the judge refused the applicant’s application for leave to seek 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 who entered Hong Kong from China illegally on 4 February 2014.  He was arrested by the police on 27 February 2014.  He raised a non-refoulement claim by way of written representation on 1 March 2014 on the basis that if he were to return to Pakistan, he would be harmed or killed by his stepbrother KS because he refused to quit supporting Pakistan Tehreek-e-Insaf (“PTI”) which was the oppositional political party of the Pakistan Muslim League (Nawaz) (“PMLN”) supported by KS.

The Director’s decisions

3.  By a Notice of Decision dated 25 July 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[1], BOR 3 risk^[2] and persecution risk^[3]. 

4.  The Director assessed the level of risk of harm from KS upon the applicant’s return to Pakistan to be low.  According to the applicant’s own evidence, there is no indication that the state of Pakistan was involved in, indifferent to or provided any form of encouragement to his enemies in threatening or harming him or his family members.  Furthermore, 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. 

5.  By a Notice of Further Decision dated 25 July 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk^[4].

The Board’s decision

6.  The applicant attended the hearing of the appeal against the Director’s decisions on 12 February 2018.  The Board considered that the applicant’s evidence was inconsistent, evasive, indirect and problematic.  He did not accept that the applicant was a credible witness and found that he manufactured his entire claim to provide a basis for his non-refoulement claim.  Therefore, the Board decided that the applicant’s claims for non‑refoulement protection were not made out on any of the applicable grounds and rejected the appeal on 22 March 2018. 

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 29 March 2018 to seek leave to apply for judicial review against the decisions of the Director and of the Board.

The judge’s decision

8.  As the applicant has pursued an appeal to the Board against the decision of the immigration officer, the officer’s decision has been superseded by the decision of the Board.  According to Re Moshsin Ali^[5],the applicant cannot seek judicial review against the Director’s decision in this situation.  Hence, the judge dealt with his application in relation to the Board’s decision only.  The judge decided that the applicant’s complaints were not reasonably arguable for the reasons given in paragraphs 30 to 33 of the decision dated 19 March 2019.  The judge also found that the adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable.  There was also no error of law or procedural unfairness in the adjudicator’s decision.  As the applicant has no realistic prospect of success in the sought judicial review, the leave application was refused on 19 March 2019.

The grounds of appeal

9.  The applicant filed a Notice of Appeal against the decision of the judge on 1 April 2019.  The grounds of appeal as stated in his notice of appeal may be summarized as follows:

(1)   The judge failed to consider the significance and level of unfairness the lack of language assistance had on him as a litigant.

(2)   There had been no assistance in interpreting the contents of the hearing bundle to him.  None of the contents in the appeal bundle had been verified by him.

(3)   The hearing before the adjudicator took place on a date that was much later than when he confirmed his instructions in the non-refoulement claim form.  Those instructions were not read back to him to refresh his memory.

(4)   The lack of interpretation services should be considered independently, regardless of whether his friends had helped him out with the language problem.  In any event, the judge’s finding that he had had help at all material times was baseless and presumptuous.

10.  The ground pertaining to the alleged lack of interpretation services was briefly mentioned in the original leave application before the judge.

11.  In his skeleton submissions, he added that the Board should treat the appeal as a rehearing and should make new findings on its own, for example, in terms of credibility, which was not assessed in this case.

Legal Principles

12.  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.

13.  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.

14.  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.  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.

15.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

16.  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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis

17.  In the application for leave to apply for judicial review, the applicant did not raise the grounds regarding the alleged lateness of the date of the Board hearing and the lack of independent assessment by the Board.  An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below^[6].

18.  The judge’s finding that the applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times was based on the undisputed fact that the applicant had a friend who helped him prepare the Form 86 and the supporting affirmation.  

19.  In reaching the conclusion that the applicant had exaggerated his language problem, the judge also considered the fact that the applicant was assisted by an interpreter while being represented by the Duty Lawyer Service and in the screening process before the Director and the adjudicator.

20.  The applicant failed to demonstrate 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.  None of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge. 

Disposition

21.  As there is no merit in the appeal and no prospect of success in the intended application for judicial review, we must dismiss this appeal.