SHAH SYED QASID HUSSAIN v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 575/2020

[2021] HKCA 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 575 OF 2020

(ON APPEAL FROM HCAL NO 1389 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal from the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 16 January 2020[1] refusing to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (“Director”) dated 12 July 2016 and 21 March 2017 and the decision of the Torture Claims Appeal Board/Adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 28 June 2018.

Background

2.  The Applicant is a national of Pakistan who entered Hong Kong illegally on 16 December 2013 and was arrested by the police on 17 December 2013.  He was referred to the Immigration Department for investigation and raised his non‑refoulement claim by way of written significations dated 19 December 2013 and 23 September 2015.

3.  His claim was made on the basis that if he returned to Pakistan he would be harmed or killed by certain local Sunni Muslims over religious disputes (the applicant being a Shia Muslim).  He was subsequently released on recognizance pending the determination of his claim.

4.  By a Notice of Decision and Notice of Further Decision dated 12 July 2016 and 21 March 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds on BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5], and determined it against him.

5.  The applicant lodged an appeal to the Board against the Director’s decisions.  After two oral hearings, by its decision dated 28 June 2018, the Board rejected the applicant’s appeal and confirmed the Director’s decisions.  The Board found at [69] to [72] of its decision that the applicant’s evidence was inconsistent and incredible and that he was not a witness of truth.  The Board accepted that the applicant is a Shia Muslim but did not accept that he had been targeted and persecuted by Sunni Muslims. After considering the relevant country of origin information (“COI”) set out in [45] to [46] and the applicant’s evidence, the Board did not accept that there was a real risk of proscribed harm should the applicant return to Pakistan.  In any event, it would not be unreasonable to expect him to relocate to other large cities within Pakistan like Islamabad where he would be able to lead a relatively normal life without facing undue hardship, see [73] to [83]. For those reasons, the Board dismissed the appeal.

Decision of the court below

6.  On 13 July 2018, the applicant filed his Form 86 for leave to apply for judicial review of both the Director’s and the Board’s decisions.  The following grounds for his intended challenge were put forward (as summarized by the Judge at [13] of the Form CALL‑1):

(1)     The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which led to an unfair outcome of rejecting his non‑refoulement claim.

(2)     The applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as a direct result of police misconduct.

(3)     The Director failed to take into consideration that the state should be rendered liable to the applicant because of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

(4)     The Director had listed relevant COI which support the applicant’s aversions that the police in his country would not be able to protect him but failed to consider or give sufficient weight to that evidence and ruled otherwise.

(5)     The Director relied only on COI which suited his pre‑conceived conclusion which was a clear case of an unfair attitude towards the applicant.

(6)     The Director failed to consider the fact that corruption and incompetency of the administration in the applicant’s home country is still a very serious problem as evidenced by the reports of various human rights organizations on the matter which supported the applicant’s assertions.

(7)     The Director failed to attain the high standard of fairness required by the Wednesbury test which should be considered as unreasonable in public law.

7.  The application was heard before the Judge on 22 October 2019.  By his decision dated 16 January 2020, the Judge refused to grant leave to apply for judicial review.  His reasons were set out at [14]‑[18] of the Form CALL‑1 as follows:

“ 14. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or why would state acquiescence be relevant to his claim, or in what way did the Director or the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director or the adjudicator fail to apply high standards of fairness in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

15. As has been repeatedly emphasized by the Court of Appeal, 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.

16. 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 45–72 of its decision with the benefit of hearing him in his oral evidence and answers to questions raised of his claim during two oral hearings of his appeal, 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 with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board.

17. Furthermore, the fact 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.

18. 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.”

8.  On 15 October 2020, the Judge granted an extension of time for applicant to file his intended appeal within 14 days of the order in view of the COVID‑19 pandemic and the closure of the Registry in the earlier parts of 2020.[6]

Appeal to this Court

9.  On 27 October 2020, the applicant filed his Notice of Appeal.  It was mistakenly stated as an appeal against the Judge’s decision made on 15 October 2020 (which is the decision to extend time), but we shall treat it as an appeal against the Judge’s substantive decision dated 16 January 2020 dismissing the applicant’s application.  In his Notice of Appeal, the applicant advanced the following grounds against the decisions made by the Director, the Board and the Judge:

“ 1. The decisions are unlawful.

2. The Decisions failed to take into account many things and assues (sic).

3. I have life’s danger in my home country Pakistan, so why, I can’t go back the Pakistan.  Please help me to save my life.”

10.  In compliance with the Court’s directions, the applicant lodged his written submissions for this appeal on 27 April 2021.  In those submissions, he reiterated that he left Pakistan because his life was in danger there, but the immigration officer did not realise the seriousness of his case and did not know the real situation and condition in Pakistan.  He asked the court to reconsider his case and grant him leave so that he could obtain legal aid, and help him to save his life.

11.  At the hearing the applicant did not have anything to add to the written materials.

Legal principles

12.  In assessing the merits of the appeal, we have borne in mind 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 the Board.  Although 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 matters 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 not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and will 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 his decision 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 will 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 the appeal were a fresh application for judicial review. 

Discussion

13.  The applicant did not in his Notice of Appeal or written submissions identify any specific errors in the Judge’s decision, or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.  As the applicant has failed to provide any viable ground of appeal, his appeal is bound to fail.

14.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection based on its adverse assessment of his credibility.  The Board did not accept that the applicant had been targeted and persecuted by Sunni Muslims or that there would be any real risk of proscribed harm should he return to Pakistan.  Such findings are within the province of the Board, and the court cannot interfere with them unless they are vitiated on public law grounds. 

15.  On the materials before us, we are satisfied that the Judge had properly examined the Board’s decision, that his observations were justified, and that he was entitled to refuse leave. 

Order

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