MEHMOOD MUFTI v. TORTURE CLAIMS APPEAL BOARD/ NON- REFOULEMENT CLAIMS PETITION OFFICE

CACV 194/2021

[2021] HKCA 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2021

(ON APPEAL FROM HCAL NO 1960 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 16 April 2021, DHCJ To (“the Judge”) refused to grant leave to the applicant 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 7 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 28 July 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 27 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

3.  The Applicant is a Pakistani national.  He entered Hong Kong illegally on 15 October 2015 and was arrested by the police on the same day.  He raised his non-refoulement protection claim on 18 October 2015 on the basis that if he were refouled to Pakistan, he would be harmed or even killed by a person called Faisal over a land dispute.  The factual background of this case was succinctly summarized by the Judge in [6] – [12] of the Form CALL-1 ([2021] HKCFI 983).

4.  By a Notice of Decision dated 28 July 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

5.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 1 June 2018.  For reasons given in its decision of 7 September 2018, the Board dismissed the appeal.  In its decision the Board accepted the applicant’s account of events that his family had a land dispute with Faisal, the son of the village head who had sold the applicant’s father some land, and he cut Faisal with a sickle in self-defense when he was attacked by Faisal and his group.  However, the applicant’s evidence as to the connection between Faisal and Pakistan Muslim League (Nawzsharif), a political party, was extremely vague.[5] The Board did not accept the applicant’s claim about the influence and ability of Faisal’s family to harm him throughout Pakistan.  In this connection, it was noted that he had no problems whilst staying with his friend near Rawalpindi before he left Pakistan, showing he could relocate safely.  The Board was not satisfied that he would face a real risk of harm or ill-treatment as claimed if he were to return his home country[6] and thus rejected his non-refoulement claim on all applicable grounds.

Decision of the court below

6.  On 18 September 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, he claimed that his life would be endangered if he were to return to his home country.  In exhibit “A” attached to his supporting affirmation, he repeated the factual background of his case and urged the court to grant him the relief sought as his life is still in danger and he is scared to return to Pakistan.   

7.  The Judge heard the application on 7 April 2021 and by his decision dated 16 April 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [15] – [16] of the Form CALL-1 as follows:

“15. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

16.  The Court had rigorously scrutinized the Board’s Decision, the papers, grounds of application and the Applicant’s submissions.  The Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM.  The Board concluded that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Court found that the Decision of the Board was utterly without fault.  There were no errors of law or irrationality in its Decision or procedural unfairness.  The Court concluded that there is no substance in the grounds of this application.  Accordingly, the application is dismissed.”

Appeal to this Court

8.  On 27 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following grounds of appeal:

(1)   The Court did not exercise caution and diligence in handling his case and there was procedural unfairness.[7] (Ground 1)

(2)   There was a lack of language and legal assistance.  As he was unable to read and write in English and the Judge’s decision was not translated and explained to him, it was difficult for him to prepare the appeal without any assistance.  He further requested the Court for translation and language assistance and an oral hearing with an interpreter arranged and reserve his right to provide further submissions within reasonable time upon having the determinations read back to him.[8] (Ground 2)

(3)   It is procedurally unfair that there is no other revenue for a non-refoulement claim to seek an appeal against a decision made purely on the ground of credibility.[9] (Ground 3)

9.  In compliance with the Court’s directions of 2 July 2021, the applicant lodged his written submissions on 16 August 2021.  In his written submissions, he just repeated his complaints on the lack of legal and language assistance as mentioned in the Notice of Appeal.  At the hearing, he had nothing to add.

Legal principles

10.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(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 on appeal, which operates as a re-hearing, 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.  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.

(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 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.

(3)   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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

11.  Ground 1 is a vague and general accusation without any specific grounds or elaboration.  The Judge had duly set out the relevant factual background of his case and the findings of the Board’s decision and then gave his analysis and reasons for refusing to grant leave to apply for judicial review.  We found nothing amiss from his decision.  Ground 1 simply cannot stand.

12.  Ground 2 is devoid of merit.  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 187nor in the judgment in FB v Director of Immigration HCAL 51/2007 prescribes that a non-refoulement claimant is entitled to an absolute right to free legal representation at all stages of the proceedings: see 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.  Regarding the applicant’s complaint of lack of language assistance, we note that all the court documents in relation to the judicial review application and this appeal were written in English and well expressed, indicating either that the applicant is familiar with the English language or that he has access to such language assistance as was needed.

14.  Further, the Court had provided interpretation service to the applicant at the lower court hearing and the present hearing, and he has been provided with a reasonable opportunity to make his written and oral submissions for his case.  

15.  Ground 3 is misconceived.  As mentioned in [5] of this judgment, the Board did not rule against the applicant’s case on the ground of credibility but on the ground that his claim only involved a private land dispute without any state elements, he was vague on the connection between Faisal and PML(N), relocation was available to him, and that he failed to establish his case on all applicable grounds. 

16.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

17.  For the above reasons, this appeal is dismissed.