RE REHMAN MAQBOOL UR

CACV 326/2018

[2018] HKCA 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 326OF 2018

(ON APPEAL FROM HCAL 722/2017)

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JUDGMENT

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam on 9 July 2018 refusing leave to the applicant to apply for judicial review.  The intended judicial review is against both the decision of the Director of Immigration (“the Director”) dated 26 June 2017 rejecting the applicant’s claim for non-refoulement protection in Hong Kong and the decision of an adjudicator of the Non-refoulement Claims Petition Office/the Torture Claims Appeal Board (“the Board”) dated 15 September 2017 upholding the Director’s decision.

2.  Due to the non-compliance with an unless order of 15 October 2018, the hearing for this appeal (originally fixed for 6 December 2018) was vacated and this appeal is processed on paper based on the materials already lodged according to the practice adopted by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307. 

3.  This is our judgment.

Background

4.  The applicant is a national of Pakistan.  He allegedly arrived in Hong Kong illegally on 15 May 2016 and surrendered to the Immigration Department 3 days later.  He lodged his claim for non-refoulement protection on 15 June 2016, and his written representation was subsequently updated on 19 January 2017.   

5.  The applicant’s claim was based on the fear that, if refouled, he would be ill-treated or even killed by his uncle because of his failure to repay a loan owed to the uncle.  The background of this case was summarized by the judge in [1] – [9] of the CALL-1 Form (published as [2018] HKCFI 1465).

6.  The Director assessed the applicant’s claim on all applicable grounds, namely, the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3] and the torture risk[4], and determined the risks against the applicant.

7.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 11 September 2017.  Based on the facts disclosed, the Board found that the applicant’s account was not believable.  Having considered the relevant country of origin information, the Board also found that state protection was available to the applicant.  Internal relocation was also a viable option for him.  The Board therefore dismissed the applicant's appeal.

The judge’s decision

8.  On 6 October 2017, the applicant applied to the court for leave to apply for judicial review.  The intended judicial review was in respect of the decisions of the Director and the Board.  The grounds for judicial review were summarized by the judge in [24] – [25] of the CALL-1 Form:

“ 24. In Enclosure 2 of Form 86, the Applicant complained the Director failed to appreciate there was state acquiescence (including its extended concept); failed to appreciate the misconduct of officials; failed to understand the corruption and incompetence of the Pakistan police; wrongly decided on the issue of state protection; being wrong to find there were alternative avenues to seek justice in Pakistan; failed to consider relevant country-of-origin information (“COI”); rendered wrong/ unreasonable decisions; failed to attain high standards of fairness.

25. The Applicant accused the Adjudicator failed to make sufficient enquiry; failed to advise the Applicant to obtain relevant government records and/or medical reports from Pakistan authorities regarding the seriousness of the torture suffered by him; being biased.”

9.  The judge heard the application on 29 May 2018.  Having heard the applicant and after giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [29] to [34] of the CALL-1 Form:

“ 29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

30. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

31. The Applicant accused the Adjudicator failed to advise him to obtain relevant government records and/or medical reports from Pakistan authorities regarding the seriousness of the torture suffered by him.

32. The Adjudicator had to engage in joint endeavour with the Applicant in the screening inquiry. However, he was not the Applicant's counsel. The Applicant knew his case best. He himself could decide whether to obtain relevant government records and/or medical reports from Pakistan authorities to prove his allegation of ill-treatment. He needed no advice from the Adjudicator or the Director on such simple matter.

33. The Applicant complained he had been detained for some time and could not produce three documents, namely, education certificate, character certificate and a Pakistan police report concerning what happened in April 2015. Be that as it might but there is no evidence the Applicant's non-refoulement claim failed for the want of those three documents.

34. The Applicant had laid a barrage of complaints. I have studied the Adjudicator’s decision and the Director's decision under ‘rigorous examination and anxious scrutiny’. In my judgement, the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.” (footnote omitted)

The appeal

10.  The applicant filed a notice of appeal on 19 July 2018, in which he referred to his affirmation for grounds of appeal.

11.  In the affirmation filed dated 19 July 2018, the applicant deposed that:

“ (1) The Honorable Deputy High Court Judge Josiah Lam was wrong in law in holding that there was no state acquiescence or involvement.

   (2) The Honorable Deputy High Court Judge Josiah Lam failed to provide detailed reason in support of [his] reason.”

12.  In Exhibit A to the affirmation, the applicant put forth the following grounds of judicial review:

(1) The Board misdirected itself by taking into account that the applicant must experience torture in the past in order to establish substantial grounds for belief of risk in the future;

(2) The Board failed to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(3) The Board cherry-picked COI information and relied on outdated COI;

(4) The Board failed to evaluate and make a finding as to whether Pakistan shows a consistent pattern of violation of human rights;

(5) The Board failed to analyse Pakistan state protection.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(6) The Board took into account incorrect facts and failed to give weight to facts favorable to the applicant.  There were no particulars for this ground;

(7) The Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(8) The Board applied incorrect standard of proof. There were no particulars for this ground; and

(9) The duty lawyer failed at the first instance to give sufficient legal representation.  There were no particulars for this ground.

General Principles

13.  Before we address the merits of this appeal, we would highlight the following general propositions for the approach of this Court in determining an appeal of non-refoulement cases:

(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 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.

(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 were 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) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new arguments, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(5) 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). 

Discussion

14.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection primarily based on its adverse finding on the applicant’s credibility.  The judge, after rigorous examination and anxious scrutiny, did not find any public law grounds that warrant the court’s interference with the Board’s decision.

15.  We do not accept that there is any reasonably arguable basis to challenge the judge’s analysis.  As we have said, the judge’s decision should be read together with the decisions of the Director and the Board: see Re Zunariyah [2018] HKCA 14 at [21]. In our view, read in light of these documents, the judge’s reasoning is sufficiently clear. 

16.  Given the facts of this case and the rejection of his story by the Board, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive, in the present case. 

17.  The grounds stated in Exhibit A are not directed at the errors of the judge. As explained above, this Court will not entertain the application afresh when the applicant failed to advance any viable grounds of appeal.

18.  Thus, in respect of Exhibit A, this Court will not entertain new grounds that are fact and evidence sensitive which had not been canvassed at the Court of First Instance.  Nor can we entertain any new COI materials in the appeal bundle which had not been presented to the Board.

19.  In light of the Board’s findings on the applicant’s lack of credibility, and the viability of internal relocation, we cannot see any merits in the non-refoulement claim.  There was no basis to call for psychological or psychiatric evaluation of the applicant.

20.  Having considered the materials available before us, we cannot find any ground that justifies a reversal of the judge’s decision.  In our view, the judge’s observations are fully justified.  We agree with the judge that leave to apply for judicial review should be refused.

21.  For these reasons, we dismiss the appeal.