RE SHAFIQ MUHAMMAD

CACV 586/2019

[2020] HKCA 986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 586 OF 2019

(ON APPEAL FROM HCAL 854/2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 6 December 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 9 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 8 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 19 May 2009 illegally and was arrested by the police on the same day.  He lodged a torture claim on 22 May 2009 which was rejected by the Director of Immigration (“Director”) on 17 January 2014.   His appeal against that decision was dismissed on 30 January 2014.  He lodged a non-refoulement claim on 10 March 2014. 

3.  The applicant’s claim was based on threats from his business partners as well as the police in Pakistan.  The details of the applicant’s claim have been summarised by the judge at [2] to [7] of the CALL-1 Form.

4.  By a Notice of Decision dated 8 June 2017 (“the Director’s Decision”), the director decided against the app claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2] and the persecution risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 8 December 2017, the Board dismissed the appeal on 9 February 2018 (“Board’s Decision”).  At [53] of the Board’s Decision, the Board found that the applicant was not a witness of truth.

The judge’s decision

6.  The applicant filed a form 86 on 16 May 2018 which contained the following grounds for judicial review, as summarized by the judge:

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

(2)  that the Director failed to take into account that the applicant was tortured at the behest of and in full collusion of the police and the state enforcement agencies that the state would be rendered liable to the applicant for their failure to provide reasonable protection for its citizens under the duty of due diligence before reaching his decision;

(3)  that the Director failed to consider or give sufficient weight to the relevant country of origin information (COI) which support the applicant’s claim that the police in Pakistan would not be able to protect its citizens;

(4)  that the Director had shown an unfair attitude in his decision by referring only to those COI which suited his pre-conceived conclusion;

(5)  that the Director failed to apply high standards of fairness by not taking into consideration the corruption and incompetency of the administration in Pakistan which is a serious problem; and

(6)  that the Board failed to make sufficient enquiry before finalizing the determination that the applicant had failed to produce credible evidence in support of his claim and in failing to give sufficient chance for the applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.

7.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge allowed the extension of time for applying for leave for judicial review but refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [21] of the CALL-1 Form:

“13. The Applicant was however late with his Form, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

14. As the last day of the three-month period for the Applicant to file his Form 86 fell on 9 May 2018, he was therefore late by about one week, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15. In the Applicant’s case, a delay of seven days cannot be said to be significant, for which he explained at the hearing that as he was then being detained at the Castle Peak Bay Immigration Centre (“CIC”) and that he had to find someone outside to assist him with his application. Given his then situation and that he was unrepresented, I am prepared to accept his explanation for the delay and to extend time for his leave application, and shall next turn to consider his proposed grounds to see if there is any merit or prospect of success in his intended challenge.

16. They are however all just broad and vague assertions of the Applicant containing several 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 adjudicator had erred in their decisions, or why was the concept of state acquiescence relevant to his claim, or in what way did the they fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or investigation of the Applicant’s claim before reaching his decision. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and clearly the complaint that he had been tortured in Pakistan is just factually incorrect even on his own case. As such I do not find any basis or merits in any of them or that any of them is reasonably arguable for his intended challenge.

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

18. In the Applicant’s case, the Board rejected his claim essentially on the adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 43 – 55 of its decision with the benefit of hearing him in oral evidence and in his answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedure in the appeal process or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

19. Furthermore, 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.

20. 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.

21. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.”

Grounds for appeal

8.  In the Notice of Appeal dated 17 December 2019 the applicant contended that:

“[the judge’s decision] was not real justice. In Pakistan Ghulum brothers many time try to kill me with the help of the police. The [Director and the Board] did not consider about my real problem. They consider the branch of my problem, so I came to the High Court. But the High Court totally follow the Director and Adjudicator.

The High Court [illegible] all the weakness but not took any action.  I want the Court of Appeal will consider those points of error of Director and Adjudicator”

9.  In his written submissions dated 29 May 2020, the applicant claimed that it is not safe for him to return to Pakistan.  He did not get any justice in the leave application before the judge, so he appealed to the Court of Appeal.  He asked for leave for judicial review to save his life.  On 22 September 2020, the applicant filed another written submission alleging that the police in Pakistan is corrupt and will refuse to help him.

10.  The applicant agreed by a letter of 17 December 2019 that the appeal could be heard by two judges.  We heard the appeal on 24 November 2020.

Discussion

11.  The applicant advanced several grounds of appeal complaining of errors on the part of the Director and the Board.  Because those grounds do not identify any error on the part of the judge, they are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  

12.  The applicant claimed that the judge’s decision was wrong but he failed to give sufficient particulars for the errors allegedly committed by the judge. This ground is therefore without merit.  In any event, having examined the judge’s decision, we can see no error in it.

13.  The applicant also claimed that it is unsafe for him to return to Pakistan.  This is not a valid ground for seeking leave for judicial review by itself. Further, the Board has already rejected the claim by the applicant as incredible and the judge did not find any public law error in the Board’s Decision.  This ground is also without merit.

14.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.