RE NADEEM ASIF

CACV 215/2018

[2018] HKCA 608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 215 OF 2018

(ON APPEAL FROM HCAL 868/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 1 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 28 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong in late September 2007 and was arrested by the police on 4 February 2008 for remaining in Hong Kong without permission.  After his arrest, he lodged a non-refoulement claim on 16 June 2009. 

3.  According to the applicant, he was a supporter of the Pakistan People’s Party (“PPP”). In about March 2006, 2 senior members of the PPP (known as AA and MR) asked the applicant to burn down the shops operated by supporters of an opponent party. The applicant refused.  AA and MR then beat the applicant with wooden sticks and harassed his family.  The applicant fled to Hong Kong.

4.  By a Notice of Decision dated 8 August 2014 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 8 December 2014, the Board dismissed the appeal on 20 July 2015.

5.  By a Notice of Further Decision dated 6 January 2017 (“Further Decision”), the Director decided against the applicant’s claim based on BOR2[4] risk.  The applicant appealed to the Torture Claims Appeal Board.  The Board dismissed the appeal on 28 September 2017.

6.  In the Board’s Decision dated 8 December 2014, at [39] the Board held that the applicant’s story was not credible.  Furthermore, at [9] it held that there was no evidence of the involvement by any state agent.  The Board was also satisfied at [20]-[21] that state protection was available for the applicant and at [18] that internal relocation was viable.  Accordingly, the applicant’s appeal was dismissed.

The judge’s decision

7.  The applicant filed a Form 86 on 11 October 2017.  The applicant advanced the following grounds in the Form 86:

“(1) the respondent had unlawfully fettered his discretion by refusing applicant’s appeal on the grounds that they did not satisfy the requirement.

(2) the Adjudicator acted in procedurally unfair in manner in dealing with the applicant’s appeal.

(3) the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense, or a result of procedural errors or unfairness.

(4)     the Respondent failed to meet the greater care and duty owed to self-represented claimant.”

8.  From the particulars given in the Form 86 and the affirmation in support of the leave application dated 11 October 2017, the applicant appears to rely on the following matters:

(1)     lack of legal representation in his appeal before the Board and in the Director’s determination of his claim under BOR 2 risk;

(2)     lack of legal assistance in his claim under BOR 2 risk and for failing to properly consider his claim or to give proper reason for dismissing his claim; and

(3)     lack of oral hearing before the Board and the applicant was not invited to provide written submissions to the Board.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to grant leave to apply for judicial review. The judge gave the following reasons for refusing such leave at paragraphs 12-16 of the CALL-1 form:

“12. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13. The applicant already had the benefit of legal representation in presenting his case to the Director, and was given an opportunity to testify or to make further representation in his appeal hearing before the Board but had declined to do so. Having failed to submit any additional facts relevant to his claim relevant to BOR 2 risk of which the Board was entitled to consider his claim based on the facts earlier presented by his legal representation to both the Director and the Board, I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

14. Regarding his ground (2) it is plainly wrong for the applicant to claim that no explanation was given by the Board in rejecting his claim under BOR 2 risk, which the Board clearly did in paragraphs 7 – 8 of his second decision, and as already noted above in the absence of any additional facts provided by the applicant relevant to BOR 2 risk other than a short note attached to his Notice of Appeal repeating his allegation of hostility from the PPP who will locate him anywhere in Pakistan, the adjudicator was entitled to consider his claim under BOR 2 risk based on the facts and evidence presented by the applicant as before, and for those reasons set out in the decision rejected his claim accordingly, and I do not see any basis for the applicant’s complaint in this ground.

15. In the premises and having proceeded to consider 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 for appeal

10.  By a Notice of Appeal dated 11 June 2018, the applicant appealed against the judge’s decision.  His sole ground of appeal was that “I can’t go back to my country at this moment because my life is not safe in my country.  Please help me to stay in Hong Kong until my problem will be solved”.

11.  In his skeleton submissions dated 27 July 2018, he repeated the same ground as the Notice of Appeal.  He said that the system is controlled by rich and strong people and that no one listens to people like the applicant.  The police in Pakistan “help criminal people and almost always stand for them”.

12.  The applicant agreed by a letter of 11 June 2018 that the appeal can be heard by two judges.

General principles

13.  Before we address the applicant’s appeal, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 524, CAMP 524/2018 AT at [14]:

“14. …

(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 the 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: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(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 were 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: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6)     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. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

14.  The only ground of appeal relied on by the applicant is that it is not safe for him to return to Pakistan.  This is not a valid ground of appeal at all.  It does not suggest any error on the part of the court below.

15.  Further, after reading the materials available to us, we are satisfied that the deputy judge’s observations are justified in light of the grounds raised and the materials before him. 

16.  There is no merit in the appeal and we dismiss the appeal accordingly.