RE ALI KARAMAT

CACV 553/2019

[2020] HKCA 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 553 OF 2019

(ON APPEAL FROM HCAL 1031/2018)

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J U D G M E N T

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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 Bruno Chan (“the Judge”) on 22 November 2019 refusing leave to the applicant’s application for judicial review dated 6 June 2018 against the decision of the Torture Claims Appeal Board (“the Board” or “TCAB”) dated 24 April 2018 and the decisions of the Director of Immigration (“the Director”) dated 4 February 2016 and 25 November 2016.[1] The Director rejected the applicant’s non-refoulement protection claim, while the Board confirmed the Director’s decisions.

2.  On 3 December 2019, the applicant filed a Notice of Appeal against the Judge’s decision.  On 19 December 2019 the applicant filed a supplemental notice of appeal and on 6 January 2020 he filed his skeleton submissions for this appeal.

Background of the claim

3.  The applicant is a Pakistani national.  He entered Hong Kong illegally on or about 10 May 2014, and was arrested by the police on 17 May 2014.  The applicant lodged his non-refoulement claim on 19 May 2014. 

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his estranged brother with assistance from the Pakistan Muslim League (Nawaz) (“PML(N)”) or their supporters, as well as by the applicant’s former business suppliers and creditors.  The factual background was summarized by the Judge in [1] – [7] of the Form CALL-1 ([2019] HKCFI 2422).

Director and TCAB decisions

5.  The Director assessed the applicant’s claim on the grounds of torture risk[2], persecution risk[3], and BOR 3 risk[4], but did not initially assess BOR 2 risk[5].  By notice of decision dated 4 February 2016, the Director rejected the applicant’s claim for non-refoulement protection.

6.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  Subsequently, the Director issued a further notice of decision dated 25 November 2016, in which he considered and rejected BOR 2 risk in the applicant’s claim.  TCAB held oral hearings on 1 December 2016 and 16 January 2017.

7.  After considering all the applicable grounds for a non-refoulement claim, including torture risk, persecution risk, BOR 3 risk and BOR 2 risk, TCAB rejected the claim on all grounds in its decision dated 24 April 2018.

The application for leave for judicial review

8.  On 6 June 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision dated 24 April 2018. 

9.  Upon the request of the applicant, an oral hearing was held on 31 July 2019 and heard by the Judge, who ultimately refused to grant leave for the applicant to apply for judicial review.  The reasons in refusing leave were set out at [13] – [23] of the Form CALL-1 ([2019] HKCFI 2422) dated 22 November 2019 as follows:

“ 13.  On 6 June 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)  lack of legal representation in his appeal before the Board;

(2)  lack of language assistance or translation of the Board’s decision to enable him to understand the reasons of the decision;

(3)  failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk and for wrongly relying on COI in his assessment of state protection and the current situation in Pakistan;

(4)  that the hearing bundle was served on him only shortly before his appeal hearing before the Board without any translation of any of the documents in the bundle; and

(5)  that the Board erred in finding that the ill-treatment received by him from his dispute with his brother did not attain the minimum level of severity but without taking into account the level of his mental suffering of being tortured so badly.

14.  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.

15.  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.

16.  As for his complaint under Ground (2) of not being provided with a translation of the Board’s decision, which by itself cannot be accepted as a valid ground of complaint against the Board’s decision, and is simply not arguable for his intended application.

17.  Regarding his Ground (3), it is clearly incorrect for the Applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, as the Director clearly did in paragraphs 5 – 6 of his Notice of Further Decision explain the reasons for rejecting the Applicant’s claim under BOR 2 risk, and on the facts of his own case his claim clearly does not engage BOR 2 risk at all. As such there is simply no basis for this complaint of the Applicant.

18.  As for his complaint under Ground (4) that the hearing bundle for his appeal was given to him only shortly before his appeal hearing and without any translation of the documents in English, even if it was indeed the case, he never raised any issue with it during his oral hearings before the Board when he in fact declined to testify, and that in any event he should be well familiar with most of the documents such as his NCF which was prepared by his lawyer on his own instructions, while the Director’s decision would have already been explained to him by his lawyer while he was still legally represented by DLS. In the premises I do not find anything amiss arising from the hearing bundle being provided to him for his appeal before the Board, and that this complaint is not reasonably arguable.

19.  As for Ground (5) of the Applicant’s complaint that the Board failed to take into account the mental suffering suffered by him from the threats from his brother and the suppliers, upon a careful examination of its decision, it is plain to me that the Board did already take into account all the relevant matters for the detailed analysis and reasoning as set out in its decision, and I do not find this ground reasonably arguable for his intended application.

20.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board 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.

21.  The fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

22.  In the premises and having proceeded to consider 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.

23.  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.”

The appeal

10.  The applicant brought an appeal against the decision of the Judge by a Notice of Appeal of 3 December 2019.

11.  By a letter lodged by applicant on 3 December 2019, he consented to the present appeal being heard by a two-member court.

12.  We heard the appeal on 19 May 2020.

General legal principles for appeals in non-refoulement cases

13.  In assessing the merit of an appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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 purpose of this application, 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.  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 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.  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 both his Notice of Appeal of 3 December 2019 and Supplemental Notice of Appeal of 19 December 2019, as well as his skeleton submissions of 6 January 2020, the applicant advanced some general allegations of procedural errors or unfairness in the Board and the Director’s decisions.  Insofar as those allegations repeated what had been advanced before the Judge, the Judge had rejected the same.  The applicant did not identify any specific errors in the Judge’s decision or any other potential grounds for reversing the Judge’s decision.

15.  As mentioned at [22] of his decision, the Judge having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, did 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.  On the assessment of the risk of harm by the Board, we agree with the Judge’s decision at [19] and [20] of the Form CALL-1.

17.  In his Supplemental Notice of Appeal and written submissions, he referred to the difficulty for him to relocate.  He said it would be difficult for him to support himself and his family if he were to relocate to other village or city.  He also said that his enemy could find him easily. 

18.  The Judge at [21] of the Form CALL-1 reiterated the assessment of the Director in respect of viability of internal relocation (which can be found at paras 21 to 25 of the letter of 4 February 2016).   

19.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis of the facts and of the Board and Director’s decisions.  The Judge is right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

20.  Accordingly, there is no viable ground to reverse the decision of the Judge and the appeal should be dismissed.