RE NAWAZ MUHAMMAD RASHID

CACV 506/2020

[2021] HKCA 1078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 506 OF 2020

(ON APPEAL FROM HCAL NO. 1893 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 31 July 2020[1] refusing to give him 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 13 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 22 November 2016 rejecting his non-refoulement claim.

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

3.  The applicant is a Pakistani national aged 35.  He entered Hong Kong illegally and surrendered to the Immigration Department on 13 April 2015.  On 16 November 2015, he raised a non-refoulement claim.  

4.  The applicant’s claim is based on fear of being harmed or killed by his three cousins because he refused to marry their sister in accordance with the practice of bride exchange called “Watta Satta”.  His claim was set out in detail in the Director’s decision at [8] and the Board’s decision at [12] to [26]. 

5.  In gist, the applicant claims that in 2007, his sister married one of his cousins.  Thereafter, his aunt and cousins expected and demanded him to marry their sister, Bushara, but he refused.  His cousins threatened to harm him.  One of his cousins belonged to an extreme Islamic terrorist group called Jaish-e-Mohammad (“JeM”).  His sister was later beaten up and thrown out of the house. In early 2013, his uncle, Ayub, had a heart attack and died, after trying to mediate between the two families.  The applicant was blamed for his death.  Not long after that, the applicant was attacked by his cousins.  On his father’s advice, he went to stay with his brother in Karachi.  His report to the police was not accepted as he did not concrete evidence against his cousins.  To avoid further danger, the applicant left for Shenzhen from where he sneaked into Hong Kong.      

6.  By his decision dated 22 November 2016, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3], BOR 3risk^[4] and BOR 2 risk^[5] grounds.   

7.  The applicant appealed the Director’s decision to the Board.  The Board heard his appeal at an oral hearing held on 18 January 2018 during which the applicant gave evidence and answered questions from the Board.  By its decision dated 13 July 2018, the Board dismissed the appeal.  

8.  In summary, the Board accepted that the applicant had refused to marry his cousin, Bashara, and was also prepared to accept that there had been some form of physical attack targeted against him.  The Board, however, did not accept that he was blamed for the death of Ayub, nor that he continued to receive threatening calls after he went to Karachi and had changed his telephone number.  On the available evidence, the Board felt it could not confirm or dismiss the applicant’s case that his cousin was a member of JeM.  But even assuming he was, having regard to all the evidence, the Board considered that while there might be some residual animosity between the two families, the applicant did not face any real risk of harm or that his cousins would still pursue him for his refusal to marry Bushara.  The Board also found internal relocation options were reasonably available, which would negate or reduce any risk of harm.  The Board therefore concluded that the applicant failed to make out any of the applicable grounds.

9.  On 10 September 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  The applicant did not provide any grounds for seeking relief.  He merely stated in the affirmation that his life is still in danger as his family has not been successful in settling the matter, and he will go back to his home country when the problem is fixed. 

10.  The applicant did not request an oral hearing. The Judge dealt with the application on the paper.  By his decision dated 31 July 2020, the Judge refused the application.  He gave his reasons at [14] to [16] of the Form CALL-1 as follows:

“14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant. See para. 11. The Court does not find any error of law or procedural unfairness in it. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15. There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

16.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

11.  By a decision dated 11 September 2020[6], Deputy High Court Judge Bruno Chan extended the time for the applicant to appeal the Judge’s decision. The applicant filed the notice of appeal on 23 September 2020.  His ground of appeal was that the Judge[7] did not give his own reason for refusing the application and only repeated what was said by the Director and the Board. 

12.  The applicant had put in a written submission which outlined the basis of his claim.  He stated that the Board asked him to relocate, but he had tried with no result.  He also claimed that the Board asked him to seek help from the authorities, and argued that the authorities in Pakistan would not help as they would accept money from his enemies.  It was further argued that since the immigration officer and the adjudicator said his problem was a family problem that did not fall within the four applicable grounds, this showed that they accepted he had problem. 

13.  We heard the appeal on 20 July 2021.  At the hearing, the applicant said that his father passed away last December, and his family was negotiating with his cousins with a view to settling the matter.  He asked to be given more time in Hong Kong until his family has settled the matter. 

14.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

16.  The role of the court in a judicial review is not to provide a further avenue of appeal.  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.  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 and/or the process by which the decision was made.

17.  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.

18.  In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal. 

19.  Firstly, 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’s only complaint against the Judge’s decision is that he repeated the reasons given by the Director and the Board instead of giving his own reasons.  In the Form CALL-1 at [8] and [11], the Judge had summarised the reasons given by the Director and the Board for their decisions, before proceeding to explain why he refused leave to apply for judicial review.  The applicant’s complaint is probably based on a misunderstanding of the layout of the Judge’s decision.  Further, although the reasons were short, the Judge did give his own reasons for refusing the application.       

20.  Secondly, evaluation of risk of harm and assessment of country-of-origin information are matters for the primary decision makers and not for the court.  The Board had accepted the basic facts underlying the applicant’s case but considered that there was no real risk of his being pursued or harmed by his cousins, and that any risk would be negated by the availability of internal relocation alternatives.  These are assessments and findings that the Board was entitled to make having regard to all the circumstances.  Importantly, the Board had given detailed explanations for its assessment and findings.  The applicant has not advanced any substantive ground to challenge them.  His bare assertions that the Board was wrong and/or he will be in danger if he returns to Pakistan are not proper grounds for judicial review.      

21.  In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We agree with the Judge that the intended judicial review is unarguable and has no reasonable prospect of success.  Accordingly, we dismiss the appeal.