RE RUSTAM KHAN AND ANOTHER

CACV 269/2020

[2021] HKCA 512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 269 OF 2020

(ON APPEAL FROM HCAL NO. 838 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 9 July 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicants in HCAL 838/2018 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 8 May 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 1 September 2016 and 25 July 2017 rejecting the applicants’ non-refoulement claim.

2.  On 16 July 2020, the applicants filed a Notice of Appeal against the Judge’s decision. 

3.  The applicants consent to their appeal being dealt with by the Court of Appeal on the papers without an oral hearing.  Having considered the papers, we are satisfied that it is appropriate to do so.  We have accordingly proceeded to dispose of the present appeal on paper.

Background

4.  The 1^st applicant (“A1”) is a 40 years old national of Pakistan who entered Hong Kong illegally on 12 February 2006 and surrendered to the police on 4 December 2006.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he were to return to Pakistan he would be harmed or killed by the man who blamed him for the suicide of the man’s sister. 

5.  On 11 November 2014, while being released on recognizance pending the determination of his claim, he married an Indonesian national in Hong Kong.  They have two children, a daughter, Samra Khan born in Hong Kong on 16 October 2012, and a son (A2) born in Hong Kong on 12 December 2015.  A non-refoulement protection claim was submitted for A2 on 16 June 2016.  He was then 6 months old.  His case was based on the same facts in support of A1’s case.  Their claims were jointly determined.  The facts of this case was succinctly summarized by the Judge in [2] – [7] of the CALL-1 Form ([2020] HKCFI 1431) and we will not repeat here.

The Director’s and the Board’s decisions

6.  By two notices of decision dated 1 September 2016 and 25 July 2017, the Director assessed the applicants’ claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4].

7.  The applicants lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 2 February 2018, during which A1 gave evidence. A2, who was two years old at the time of the Board’s hearing, was absent and was excused from the hearing.  A1 confirmed that A2’s claim was wholly based on his evidence.  

8.  By the decision of 8 May 2018, the Board dismissed the applicants’ appeal and confirmed the Director’s decisions.  For the reasons set out in [71] to [85] of the decision, the Board found that A1’s claim was based mainly on hearsay and speculation and that his claim was unreliable and incredible.  Further, A1 did not ask for protection from the Hong Kong authority upon his arrival in Hong Kong using a false passport in February 2006 and only surrendered himself more than 9 months after his arrival that casted doubt on the true reason for his departure from Pakistan and on the veracity of his claim.  In any event, there was no state agents involved in the claimed threats.  The Board, after considering the relevant Country of origin information (“COI”)[5], found that A1 and A2 would have viable alternative to relocate to other places in Pakistan and there is non-government organization (“NGO”) which could provide social support to A1 and A2 such as provision of health care through hospital, and maternal and child health centres.  On the basis of the aforesaid findings, the Board did not find any real chance that A1 and A2 will be harmed, or otherwise ill-treated, in Pakistan if they are refouled and that their non-refoulement protection claims were failed on all applicable grounds.

The Judge’s decision

9.  On 14 May 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form.  In A1’s supporting affirmation of the same date, he merely stated that he would like to reject and review the decision which had disregarded his dangerous situation in Pakistan, but without providing any particulars or elaborations.  

10.  The applicants did not request for an oral hearing.  By the CALL-1 Form of 9 July 2020, the Judge, after careful consideration of the Director’s and the Board’s decisions, refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] to [17] of the Form CALL-1:

“14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicants’ case, the Board rejected their claim essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 71 – 86 of its decision with the benefit of hearing him in his oral testimony during his appeal hearing together with the inconsistencies and problems in his claim which he declined to answer or clarify, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17.  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 Applicants’ claim.”

Notice of Appeal

11.  On 16 July 2020, the applicants filed their Notice of Appeal against the Judge’s decision, in which they did not provide any ground of appeal save for saying that they would like to reject and review the Board’s decision in rejecting their case by disregarding the dangerous situation back home faced by them.

12.  In his written submission dated 12 October 2020, A1 advanced the following:

(1)  Pakistani administrative system and police are corrupt and ineffective.  The government cannot protect women, religious minorities and children from violence and human rights abuses.

(2)  The COI stated by the Board was just based on state report without understanding the cultural context in Pakistan.  Security forces in Pakistan are not accountable to its people and have been implicated in enforced disappearances and extrajudicial killings.

(3)  Pakistan, as a Muslim Country, is heavily communal and it is easy to track down and kill a person.

(4)  The Director has failed to consider the factors in local context and does not understand the intricacies of the situation of Pakistan. 

(5)  Even though A1’s case started off as a private dispute, it turned into a wrong accusation against him for being affiliated with a terrorist organization but he had never conducted any terrorist act in Pakistan.  Thus, he deserved a reconsideration of his claim on BOR 2 risk ground so as to avoid being unfairly sentenced by the Pakistani authority if refouled.

Discussion

13.  The relevant principles regarding appeals of non-refoulement cases have been duly set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14] and may be summarized as follows:

(a)  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.

(b)  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.

(c)  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). 

14.  In the present appeal, the applicants did not in their Notice of Appeal or in their written submissions provide any particulars on how the Judge’s decision had erred in law or was wrong in the assessment of merits of their appeal. 

15.  The applicants’ complaints against the Board’s decision were broad and general.  As mentioned earlier, assessment of evidence and COI materials and risk of harm are primarily within the province of the Board and the Court would not re-examine the Board’s decision afresh as if it were a fresh application for judicial review. Here, A1’s case was rejected on issue of credibility as his evidence was found to be inconsistent and incredible.  In any event, the Board found that internal relocation is a viable option for the applicants. Having considered the materials before us, we are of the view that the Board’s findings and conclusions are eminently reasonable and fully justified.

16.  Regarding the applicants’ request to reconsider his claim on BOR 2 risk, as rightly observed by the Board, A1 did not make any relevant representation on BOR 2 risk.  In any event, having reviewed his claim and in the absence of any further evidence/additional information from A1 on his claim for BOR 2 risk, the Board did not find from the facts of his case that it will give rise to any risk of violation to the right to life under BOR 2 risk.[6]  It is perfectly open for the Board to reach its conclusion and we see no basis to intervene.

17.  For these reasons, insofar as A1 is concerned, the appeal has no merit.

18.  However, it is necessary for us to separately consider the A2’s position, as he is a minor and has not been legally represented in these proceedings as required under Order 80, Rule 2 of the Rules of the High Court, Cap. 4A: see Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971. 

19.  The proper approach to children’s non-refoulement claims has recently been considered by this Court (Lam VP, Barma & Au JJA) in Fabio Arlyn Timogan (Supra) and in gist:

(a)  Non-refoulement claims by children, even if based on same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children; and

(b)  Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

20.  With the aforesaid principles, the Court needs to be satisfied that the Board had achieved high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board.  On being so satisfied, it is open to the Court to conclude, treating the non-compliance with Order 80, Rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 at [8] and as discussed in [57] of Fabio Arlyn Timogan, that the minor’s intended judicial review is without merit notwithstanding the minor has not been legally represented before the Board and before the Judge.

21.  In the present case, A1 did not put forward any specific ground in relation to A2 before the Judge.  It is pertinent to note that A2 was born in Hong Kong and there is no evidence that he has been to Pakistan or would be subject to any risk of harm other than those considered and rejected by the Board if he were to go with A1 to Pakistan.  We are satisfied that the Board had considered A2’s case on all applicable grounds.  When it considered the viability of internal relocation, it found that there would be NGO to provide children health care.  We are also satisfied that there is no underlying matter that may support minor-specific non-refoulemnet grounds which had not been advanced before the Board and the Judge.  In short, A2’s appeal has no merit.  We therefore treat the absence of legal representation of A2 before the Judge and in this appeal as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.

22.  For these reasons, we dismiss the appeal of both applicants.