RE HUSSAIN AMIR

CACV 297/2019

[2019] HKCA 1133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 297 OF 2019

(ON APPEAL FROM HCAL 433/2018)

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REASONS FOR JUDGMENT

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Hon Coleman J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as stated in Form CALL-1 dated 21 June 2019, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 445. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 9 March 2018 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated 19 September 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  At the end of the hearing, we dismissed the appeal and indicated we would hand down our reasons.  This is what we now do.

Background

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 26 January 2016 and surrendered to the police on 27 January 2016.  He lodged a non-refoulement claim on 29 June 2016.

4.  The details of the applicant’s claim and his personal background were set out in paragraphs 5-6 of the Director’s Decision, and paragraphs 8-10 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that if he were to return to Pakistan, he would be harmed or killed by his paternal uncle Nazir Ahmed (“Nazir”) or Pakistan Muslim League (Nawaz) (“PML(N)”).  He claimed that his father had a land dispute with his uncle Nazir who was close to a PML(N) politician.  In a meeting in around 2010 when Nazir proposed to settle the dispute with his father, some unknown men also attended.  Together with those men, Nazir pulled out knives, wooden sticks and rifles to threaten the applicant and his father that if they went to the police, they would be killed.  A few months later, the applicant met a councillor who would help them file a case against Nazir.  However, during the preparation, some policemen came to arrest the applicant for killing an elder villager.  The applicant believed that he was framed by Nazir and thus he left his home country. 

The Director’s Decision and the Board’s Decision

6.  In the Director’s Decision, the Director assessed the torture risk^[1], the BOR 3 risk^[2], the persecution risk^[3] and the BOR 2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

7.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 23 February 2018, during which the applicant answered questions raised by the Board.  During the hearing, the applicant indicated several times that he wished the Board to make a decision on the materials available and he did not want to answer further questions.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

8.  The Board found that the applicant’s evidence was brief but consistent with his claim.  Although it was difficult to make an assessment of credibility, the Board still found that the land dispute was credible.  Nevertheless, the Board was not satisfied that the applicant made genuine efforts to substantiate his claims due to his unwillingness to answer questions (paragraphs 33-40 of the Board’s Decision).  Further, the Board did not accept that the applicant was being sought under a warrant since the applicant was able to avoid arrest and obtain passport to flee the country (paragraphs 41-48 of the Board’s Decision).  As a result, the Board refused to accept that the applicant was a subject of a politically motivated arrest or he would face any risk of serious harm if he were to return to Pakistan.

The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 19 March 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review were summarized by the Deputy Judge at paragraph 9 of the Deputy Judge’s Decision:

“9. On 19 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1) that the director and the adjudicator reached their decisions wrongly in assessing his claim;

(2) that their decisions were not fair or reasonable as required by the Wednesbury test;

(3) that they failed to take into consideration that right to life must be protected from extra-judicial killings which he may face if deported to Pakistan; and

(4) that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.”

10.  The Deputy Judge heard the applicant’s leave application on 8 February 2019.  The applicant did not elaborate or present with any particulars or specifics of the above-mentioned grounds during the hearing.  Having heard the applicant and considered the documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 10-16 of the Deputy Judge’s Decision:

10. These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or how would extra-judicial killings be relevant to his claim, or how did the adjudicator fail to give him sufficient time or opportunity to produce his evidence in support of his claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even now in his application before me or at the oral hearing he did not produce any further evidence or argument for his claim.  As such I do not find any basis or merits in any of his grounds or that they are reasonably arguable for his intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

12. In the applicant’s case, as held in Re Moshsin Ali [2018] HKCA 549, it is no longer open to him to challenge the Director’s decision by way of judicial review once his appeal to the Board has been pursued and that the Director’s decision has been superseded by the Board’s decision.

13. As for the Board’s decision, as the applicant declined to answer any questions from the adjudicator so as to clarify his claim, the Board was entitled to make its findings and evaluation of his asserted risk of harm based on the evidence and materials available and for the reasons as set out in paragraphs 33 – 48 of its decision in rejecting his claim and dismissing his appeal, and in the absence of any legal error or procedural unfairness being identified by the applicant, I do not find any arguable ground or reason to interfere with the Board’s decision.

14. Furthermore, the fact that it has been established by the Director in his 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, a decision subsequently confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15. 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.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds of appeal

11.  The applicant filed the Notice of Appeal dated 2 July 2019 to appeal the Deputy Judge’s Decision.  He set out the following grounds of appeal:

“I regard that the Honourable Judge did not take into account fear of my life. And many cases are occurred (murder) in Pakistan because of family property. Documents attached with is (A1-A8) total 8 Nos. Note: further documents submit on hearing time”. [sic]

12.  The documents he referred to in the Notice of Appeal were the Deputy Judge’s order to dismiss his application and the Deputy Judge’s Decision.

Discussion

13.  At this hearing, the applicant complained that the decisions below saw the positive things in Pakistan but did not take account of the negative things happening.  He also repeated that he had tried to relocate, but his pursuers are so powerful they could find him, and at the place which is his residential area the PML(N) is still in power.  Other than this, the applicant confirmed he had nothing else to add.

14.  Before considering the merits of the grounds of appeal, it is worth repeating the following now well-established principles.

15.  First, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  The primary decision maker to consider whether there was state acquiescence or involvement is the Director and the Board.  The court would and should not usurp the role of the Director or the Board and will only intervene if public law grounds for doing so are established.  See: Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; and Re Masoom Parvez [2018] HKCA 163.

16.  Second, an appeal against refusal of leave for judicial review is not an occasion for the applicants to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Deputy Judge if it could be demonstrated that there were errors in law, that the Deputy Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

17.  In other words, the Deputy Judge was not tasked to make primary fact findings of the applicant’s claim.  His responsibility is to examine whether the Board made any errors in assessing the applicant’s case.

18.  The Deputy Judge in his decision had carefully examined the Board’s Decision and the Director’s Decision and concluded that their decisions did not commit any public law errors, in that: their decisions did not make any errors of law, were not tainted with any procedural unfairness, and were not Wednesbury unreasonable; and the Director and the Board had also achieved the high standards of fairness required for assessing applicant’s non-refoulement claim.

19.  In his skeleton argument dated 3 September 2019, the applicant quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  He further submitted that the Adjudicator acted in a procedurally unfair manner in assessing the applicant’s credibility.  In addition, the applicant quoted some passages from Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 K.B. 233 and R v Ministry of Defence exp. Smith on the general principles that an administrative body should not act Wednesbury unreasonably.  He also quoted s.37ZT of Immigration Ordinance in relation to the late filing of notice of appeal before the Board.

20.  These however are either irrelevant or merely related to complaints directed at the Director and the Board, which had been properly addressed by the Deputy Judge in his reasons.  As mentioned above, the applicant has not identified anything in this appeal to demonstrate why the Deputy Judge was wrong in his reasons.  These authorities, with which the Deputy Judge was very familiar, therefore do not assist the applicant in this appeal.

21.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s decision.

Disposition

22.  For the reasons given above, the applicant’s appeal has no merits at all. Accordingly, we dismissed the appeal.