RE IMTIAZ FAISAL

CACV 398/2020

[2021] HKCA 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 398 OF 2020

(ON APPEAL FROM HCAL NO. 2864 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 6 August 2020 in HCAL 2864/2018 refusing leave to the applicant to apply for judicial review.  By that decision, the Judge refused his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 8 November 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 21 December 2016.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 1 December 2020, the applicant should lodge with the court 2 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 25 January 2021.  The applicant only lodged his written submissions on 29 January 2021.  As the delay is not substantial, we are prepared to excuse the delay and allow the late lodging of the written submissions.  However, the applicant failed to appear in Court on the date of the hearing and we had decided to deal with the appeal in his absence.

Background

3.  The applicant is a national of Pakistan.  He came to Hong Kong illegally on 22 August 2009 and was arrested by police on the same day.  He was then transferred to the Immigration Department for investigation.  On 25 August 2009, the applicant lodged his non-refoulement claim by way of written representation on the basis that if refouled, he would be harmed or even killed by (i) an unknown group of people (“the unknown group”) who had previously kidnapped him and (ii) some members of Inter-Service Intelligence Agency, Pakistan (“ISI group”) due to some sensitive information received by him when working as an agent of ISI in 2007.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1873.

4.  By the Notice of Decision dated 21 December 2016, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  The applicant appealed to the Board.  After oral hearings on 12 and 17 July 2017, the Board dismissed the appeal on 8 November 2018. For the reasons set out in [98] to [121] of the decision, the Board found that there was a significant delay of 3 years in providing what he said as his true claim concerning his role in ISI and the assassination.  The Board further found the applicant’s account of event was full of inconsistencies and omissions.  As such, the Board did not find the applicant’s evidence plausible or persuasive and concluded that he had not suffered the harm as he had claimed. The Board also rejected that he would face any proscribed forms of harm from any parties upon his return to Pakistan as there was no consistent pattern of gross, flagrant or mass violations of human rights in Pakistan for the purposes of section 37ZI(5) of the Immigration Ordinance (Cap.115).  For the aforesaid reasons, the appeal was rejected on all applicable grounds.

The Judge’s decision

6.  On 14 December 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decision of the Director’s decision.  With the leave of the Judge and pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (Cap. 4A), Form 86 was amended by replacing the Director with the Board and the Director was made an interested party. 

7.  The applicant did not provide any grounds of review in the Form 86 and in his supporting affirmation, he only said that the Director had disregarded his dangerous situation. 

8.  The applicant did not request for an oral hearing and the Judge disposed the application on paper.  By the CALL-1 Form of 6 August 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [12] – [15] of the CALL-1 Form:

“12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

The Appeal

9.  On 20 August 2020, the applicant filed his Notice of Appeal.  He did not provide any ground of appeal save that the Court had disregarded his dangerous situation. He did not turn up at the hearing of his appeal.

10.  In his written submissions, the applicant reiterated the background of case and the political condition of Pakistan.  He alleged that the Country of origin information (“COI”) stated in the Board’s decision did not reflect the true situation and did not have proper understanding the cultural context of his home country.  He claimed that the Pakistani government did not protect its people, that security forces were implicated in the disappearances and extrajudicial killings of its people.  The applicant further claimed that as a Muslim country which is heavily communal, one can easily be track down and be killed in Pakistan.  He contended that the Director had failed to understand and consider the local factors of his country.  Lastly, he considered that his case should not be rejected on the chances of success, rather the court should see whether the Board had enough knowledge about Pakistan.

General Principles

11.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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

12.  In our judgment, nothing set out in the Notice of Appeal and the applicant’s written submissions constitute valid grounds of appeal as they did not pinpoint any error of law or any discernible grounds for us to reverse the Judge’s decision.

13.  Having read the decision of the Board, we take the view that the Board had carefully considered the applicant’s evidence and decided against him on credibility.  The Board did not accept that the applicant would be at risk of any harm if refouled.  It is within the province of the Board to reach its findings and conclusion and we see no basis for intervention. 

14.  We are also satisfied that the Judge had duly considered the Board’s decision carefully and we found no errors of law or procedural unfairness or irregularities in the Judge’s decision.

15.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.