RE IJAZ MUHAMMAD

CACV 126/2021

[2021] HKCA 1192

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 126 OF 2021

(ON APPEAL FROM HCAL NO 1541 OF 2018)

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 8 July 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1421[1].

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 16 July 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 8 June 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The applicant filed his Notice of Appeal on 24 March 2021.  He also lodged his written submissions on 25 June 2021 pursuant to the directions of the Registrar of Civil Appeals.

A.     Background

4.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 18 September 2015 and was arrested on the same date.  He lodged a non-refoulement claim on 20 September 2015.

5.  The details of the applicant’s claim and his personal background were set out in paragraph 7 of the Director’s Decision, and paragraphs 18 ‑ 27 of the Board’s Decision.

6.  The applicant claimed that he would be harmed or killed by his business competitor named Imran upon refoulement.  The applicant claimed to have a business in which he would purchase the properties from the developers and sell high to other purchasers.  In 2015, Imran bought a property from the applicant but defaulted the payment.  Worse still, he threatened to kill the applicant if the applicant chased for payment.  Suspected that it might be a trap to kick him out of the business, the applicant dared not do anything as Imran was well-connected to the Pakistan Muslim League (N).  Out of fear, he fled to Hong Kong for protection.

B.     The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk^[2], the persecution risk^[3], the torture risk^[4], and the BOR2 risk^[5] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  The hearing for the appeal was held on 31 May 2018, at which the applicant answered inquiries from the Board.  Having considered the oral evidence and the materials placed before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

9.  The Board found that the applicant’s version of events was supported essentially by bare assertions without any documentary proof.  It found that he was not a credible witness (paragraphs 67 - 81 of the Board’s Decision).  In any event, the Board further found that the applicant could relocate to other places in Pakistan without any concern for his or his family’s safety (paragraphs 61 - 66 and 82 of the Board’s Decision).  Thus, the Board dismissed his appeal.

C.     The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 3 August 2018 seeking leave to apply for judicial review against the Director’s Decision and the Board’s Decision.  The grounds of review as stated in his supporting affirmation were summarized by the Deputy Judge at [8] of the Deputy Judge’s Decision as follows:

“8. On 3 August 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the decision made by the Director and the Board regarding his non-refoulement claim had been determined unfairly in that he was not given legal representation in his appeal before the Board; and

(2) that he was not given language assistance in translating or interpreting the documents in the hearing bundle for his appeal to the Board.”

11.  After hearing the applicant and considering the materials before him, the Deputy Judge dismissed the applicant’s leave application for the reasons set out at [9] ‑ [16] of the Deputy Judge’s Decision:

“9. 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 standards 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.

10. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. 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.

11. As for his complaint under Ground (2) of not being given language assistance in his appeal to the Board including translating or interpreting the documents in the hearing bundle, it is clear that most of those documents would have been familiar to the Applicant as they had all been made available to him while he still had legal representation from DLS, while his NCF was completed on his instructions to his lawyer from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue over translation or interpretation of his hearing bundle. As such and in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 67 ‑ 82 of its decision with the benefit of hearing his oral testimony and answers to questions raised of his claim during his appeal hearing before the Board, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. Furthermore, the fact that it has been established by both the Director and the Board in their decisions 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.

15. 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.

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.”

D.     Grounds of appeal

12.  In his Notice of Appeal, he only stated that he would provide the grounds of appeal at a later date.  He did not file any supporting affirmation.  Later, in his written submissions, the applicant quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the principle of high standard of fairness and other decisions on Wednesbury unreasonableness.  He also cited section 37ZT of the Immigration Ordinance (Cap 115) on the late filing of the notice of appeal before the Board.  Yet, he did not explain how this provision and the cited authorities were relevant to his case and would assist his appeal.

13.  At the hearing, the applicant confirms that he has nothing further to add to what have already been set out in the Notice of Appeal and the written submissions.

E.     Discussion

14.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  They can be summarized as follows.

15.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an 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 determining 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 has made errors of law or failed to take into account relevant matters already placed before the court or was otherwise plainly wrong.

17.  Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

18.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors said to have been committed by the Deputy Judge in the Deputy Judge’s Decision.

19.  Bearing these principles in mind, we are of the view that this appeal has no merit.

20.  As mentioned above, the applicant’s grounds of judicial review were effectively that the decision-making process was unfair and unreasonable because of the lack of language and legal assistance.  However, at [9] - [16] of the Deputy Judge’s Decision as quoted at [11] above, the Deputy Judge had carefully and properly applied the correct legal principles in this respect to the present case in reviewing the Board’s Decision and concluded that there was no procedural unfairness in its decision making process.  The Judge had also clearly borne in mind the heightened standard of fairness that he should adopt in carrying out the review.  In this appeal, the applicant has simply failed to pinpoint any error with sufficient particularities in the Deputy Judge’s aforesaid reasons.  There are therefore no viable grounds of appeal.

21.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We agree with the Deputy Judge that there are no proper public law grounds to interfere with the Board’s Decision.

22.  For all these reasons, we dismiss the appeal.