KHAN NASIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 344/2020

[2021] HKCA 164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 344 OF 2020

(ON APPEAL FROM HCAL NO 489 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 28 July 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 16 March 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 9 May 2017 rejecting his non-refoulement claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of Pakistan.  He entered Hong Kong on 6 June 2014 illegally and was arrested by the police on 9 June 2014.  He lodged a non-refoulement claim on 11 June 2014.

4.  The applicant’s claim was based on his fear of being harmed or killed by the supporters of a political party named Pakistan Muslim League(N) (“PML-N”) as he refused to join the party.  His case was summarised by the Judge in [1-4] of the Form CALL-1[1].

5.  By his decision dated 9 May 2017 (“the Director’s decision”), the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds. 

6.  By its decision dated 16 March 2018 (“the Board’s decision”), the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board held that it was not satisfied that was any real risk of harm to the applicant upon his return to Pakistan.  The Board was also satisfied that there was nothing to suggest that the applicant would not receive state protection upon his return and that internal relocation would be viable. 

Application for leave to start judicial review

7.  On 26 March 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision. 

8.  In his affirmation in support of the leave application dated 26 March 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [9] of the CALL-1 Form:

(1)  that it was unreasonable for the Board not to accept that he had been tortured by PML(N) supporters despite the presence of medical evidence in support of his claim;

(2)  that despite accepting the fact that he had been beaten by PML(N) supporters it was unreasonable and senseless for the Board to conclude that he would not be subject to any future risk of being harmed by them upon his return to Pakistan;

(3)  that the Board failed to analyze and assess whether state protection exists in Pakistan; and

(4)  that the Board failed to recognize the fact that he has married a Hong Kong resident and that he should be allowed to stay in Hong Kong to take care of his wife and their family.

The Judge’s Decision

9.  The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on the papers.

10.  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 give leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [10] to [14] of the CALL-1 Form:

“10.  These are however mainly just 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 Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to properly analyze the relevant COI as to state protection in Pakistan, while the Board did accept that him may have been threatened and assaulted by some PML(N) supporters but rejected his claim for the right reason that reasonable internal relocation within Pakistan was available for him, and the fact that he has married a local resident cannot be a valid basis for his non-refoulement claim. As such I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  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 Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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.

14.  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.”

Appeal to Court of Appeal

11.  By a Notice of Appeal filed on 10 August 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds:

“1.  The decision is substantially unfair;

2.  I am preparing this application without legal representation.  I reserve the right to amend these grounds in due course.”

12.  In Exhibit B entitled “Initial Grounds of Appeal” attached to his affirmation dated 10 August 2020, the applicant deposed that:

(1)  The Board failed to consider his case properly notwithstanding that a hearing was held;

(2)  The applicant requested the Court of Appeal to look into his medical report and a CD-ROM filed for his application below;

(3)  The applicant will face danger from two major political parties in Pakistan upon his return;

(4)  There was no oral hearing before the judge;

(5)  The court ought to consider the current situation in Pakistan, especially the possibility of a war between Pakistan and other countries; and

(6)  The applicant needs to stay in Hong Kong and take care of his wife.

Skeleton Submissions

13.  On 29 December 2020, the applicant lodged his written submission, by which the applicant expanded on his grounds of appeal and submitted that the pandemic has made it unsafe for him and his family in Hong Kong to return to Pakistan.

Legal Principles

14.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

15.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

16.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here. 

17.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

18.  We heard the appeal on 1 February 2021.  At the hearing, the applicant had nothing further to say. 

Discussion

19.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

20.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

21.  As for the ground based on the lack of an oral hearing before the Judge, the applicant had never requested an oral hearing.  The Judge may determine the leave application without a hearing if a hearing is not requested in the Form 86[9].  This ground is also without merit.

22.  We have considered the CD-ROM exhibited as Exhibit (D) to his affirmation dated 26 March 2018 which contains the following files:

(1)  4 video files in the folder “PML-N MPA SCANDLE”.  In the accompanying text file, the applicant contended “these videos are showing cruelty and the power of PML-N MPA.  these are just the examples of inhumanity and injustice there are a lot more video proofs about that.  they can do anything without having fear of anyone.”

(2)  2 video files in the folder “police bribery videos”.  In the accompanying text file, the applicant contended “these two videos are for just to give you some idea about police corruption in Pakistan.”

(3)  1 video file in the folder “violation of human rights in Pakistan”

(4)  1 video file in the folder “when you try to raise our voice against corrupt system”.  In the accompanying text file, the applicant contended “in this video a Pakistani police officer begs for his salary and raises voice against corrupt system and politicians but instead of getting justice he got beaten up by police and authorities his fault was just to speak against the corrupt system.”

23.  Apparently, the purpose of these videos was to invite the court to take a view on the corruption and lack of state protection in Pakistan.  The videos had been put before the Judge and the applicant did not point out what error the Judge has committed in relation to these videos.  This ground is also without merit.

24.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no basis to disturb the Judge’s decision. 

25.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.