RE RANA SHAHID KHAN

CACV 588/2021

[2022] HKCA 894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 588 OF 2021

(ON APPEAL FROM HCAL NO. 2378 of 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 15 December 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 27 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 28 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Pakistani national and a Shia Muslim. The applicant was arrested by police on 18 June 2008 after illegally entering into Hong Kong and he was subsequently sentenced to 15 months’ imprisonment for unlawfully remaining in Hong Kong.  Upon his discharge from prison he was referred to the Immigration Department on 19 June 2008 for deportation.  He raised his non-refoulement claim on 22 July 2008. 

3.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by Sunni Muslims from his home village, due to a conflict in which those Sunnis violently opposed the applicant and his family’s efforts in constructing a Shia mosque.  Those Sunnis assaulted the applicant and also allegedly caused the local police to bring false charges against the applicant and subsequently murdered his father.  The factual background was set out at paragraphs 18 to 32 of the Board’s decision.

4.  By notice of decision dated 28 November 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk[2], persecution risk[3], torture risk[4], and BOR 2 risk[5].

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 31 May 2018, during which the applicant answered questions from the Board.  The Board found that the applicant was not a truthful witness, due to concerns as to the plausibility of a number of his allegations, and the applicant’s unpersuasive responses during the hearing when the Board raised such concerns with him.  Those concerns included questions as to why the applicant’s father and brother went to work at Daska which was 6 to 7 kilometres away from their home village, after being beaten by a crowd of Sunnis, why the applicant was chosen to lead the construction of the Shia mosque given his age and that his father and brother were also involved; and why the applicant was beaten more than the others. 

6.  The Board also noted that during the hearing, the applicant changed his oral evidence when questioned in detail about the above incident and provided two very different versions of events, which reflected poorly on the applicant’s credibility and reliability.  The Board also considered the fact that the applicant’s family continued to live in their home village for three years after he left Pakistan, and continued to construct the mosque, undermined his claims of being in danger from the Sunnis who were opposed to building that mosque.

7.  In addition, the Board considered it implausible for the applicant’s family to move only 6 to 7 kilometres away from their home village to Daska after the applicant’s father was murdered.

8.  Due to its adverse finding on the applicant’s credibility, the Board found that there was no real risk of harm in the event of refoulement.  Therefore, on 27 September 2018 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

9.  On 29 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation he raised a number of grounds for judicial review, which are summarized at [9] of the Form CALL-1:

“9. On 29 October 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)  that the Director did not take into account the amount of discrimination and feud between the Shia and Sunni Muslims in Pakistan where Sunni is the mainstream religion with a lot of fundamental different values and principles between the two religions which neither the Director nor the Adjudicator took into consideration or questioned the Applicant in the process of screening his claim;

(2)  that the Director merely took into account state protection and how there have been reforms in recent years to tackle police ineffectiveness and corruption which is factually not the case, and that the Director simply made the assessment based on the assumption that everyone is equal in Pakistan but in reality Shia Muslims are subject to a lot of discrimination of which the Director actually made no finding either to rebut the Applicant’s argument or to support his case which show that the Director was merely adopting a formula approach of assuming all Pakistani are treated equally within the Pakistani judicial system which is in fact not true;

(3)  that the Applicant was never provided with any translation of the Director’s decision and other documents in English or any legal assistance for his appeal to the Board which is an unfair treatment of his case and is far from achieving high standards of fairness;

(4)  that the Director wrongly exercised his case management power by using a biased and formula approach in coming to the conclusion that state protection would be available to the Applicant which is contradictory to the available COI of which the Director had not considered properly that such cherry-picking and biased approach is highly unfair and prejudiced; and

(5)  that the decision of the Board has never been read or translated to the Applicant thereby depriving him of knowing the reasons behind the rejection of his claim and his right to make a full and proper application for judicial review of the Board’s decision which is simply unfair and unreasonable.”  

10.  Following a hearing on 25 November 2021 at which the applicant appeared before the Judge, on 15 December 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10-15] of the Form CALL-1 as follows:

“10. While some of these arguments of the Applicant such as the historical conflicts between Shia and Sunni Muslims in Pakistan and with the minority Shias being subjected to sectarian violence by the majority Sunnis are factually accurate and corroborated by the relevant COI, the fact is that they are not applicable to the Applicant’s claim on the basis of his own case even at the highest which arose from a local dispute in his home village that once both he and his family had left and moved to other cities that there had been no further threats made against him or his family or of any risk of any kind elsewhere in the country that none of his complaints would in my judgment assist or advance his case any further, nor would they be reasonably arguable for his intended challenge against the findings of the Board.

11. As for his complaint of not being provided with translation of the documents or given any legal assistance for his appeal before the Board, the Court of Final 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 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.

12. As the Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation at his appeal hearing before the Board with the assistance of an interpreter and to answer questions put to him by the Adjudicator without difficulties, and while it is accepted that his first language is not English, many of the documents such as his NCF and the Director’s decision had in fact already been supplied to him earlier when he was still represented by lawyer from DLS, and that his NCF was prepared on his own instructions by his lawyer and should be well familiar to him, and that he never raised any issue about translation or interpretation at the hearing of his appeal before the Board, whereas in his present application, he clearly had legal assistance in the preparation of his application and supporting affirmation. In the circumstances, and in the absence of any particulars or specifics to demonstrate that the basis of his claim had indeed been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant merely speculative and without basis.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where 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.

14. In the Applicant’s case, 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.

15.  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.”

Appeal to this Court

11.  On 24 December 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal are essentially that the lack of legal and language assistance resulted in procedural unfairness.  He pointed out that neither he nor his friend who assisted him in preparing his leave application understand legal jargon and that without legal assistance, he could not identify legal errors in the Director or Board’s decisions.  Even when an interpreter was provided at the Board hearing, the hearing bundle was not read to him. The applicant also pointed out that that his friend is not a professional, and that he could not always find help with interpretation or translation.  Further, the applicant requested that the judgment be translated or read to him, as no translation of the judgment has been provided.

12.  The applicant lodged written submissions on appeal on 16 May 2022.  In those submissions, he largely reiterated his grounds of appeal, and elaborated that without sufficient language assistance to enable him to understand his claim to its fullest, he is deprived of the right to lodge a proper appeal and his case is put at risk of being dismissed for lack of grounds.  He further submitted that the authorities have not taken into account the fact that English is not his first language, that he has no right to work in Hong Kong and therefore cannot hire proper help, and that he is traumatized by the problems in his home country.  In addition, he requested that he be allowed to provide any further grounds of appeal upon having the documents read back to him after a reasonable time frame, instead of being caught on the spot on the day of the hearing, and that he should be given 14 days to provide further submissions in person.  He also requested a reasonable period to make further submissions about errors made by the authorities, upon the applicant receiving language assistance.

13.  The applicant appeared before us. When asked if he wished to highlight any matters, he reiterated his fear of being killed by rival political party members should he be sent back to his home country. He asked for justice from this Court.

Legal principles

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [6]; Re Md Shohel Sheak [7];and Re Limbu Birkhaman [8]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to its adverse finding as to the applicant’s credibility.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board.  The court will not interfere with such assessments unless they are reversible on public law grounds. 

16.  As the role of the Court in a judicial review is not to provide a further avenue of appeal, the applicant’s repeated claim of fear for his life should he be sent back to his home country is not a ground of appeal which this Court can entertain.

17.  The applicant has not raised any potential errors or concerns as regards the Board’s assessment of credibility.  There seem to be no valid public law grounds for reversing or interfering with the Board’s assessment.

18.  As for the applicant’s arguments regarding lack of legal and language assistance, whether the level of legal or language assistance provided would result in unfairness, depends on the circumstances.

19.  The applicant was legally represented and provided with language assistance on his claim before the Director.  At the Board proceedings, the Board’s decision was based on its assessment of the applicant’s oral evidence at the Board hearing, and his previous evidence presented to the Director, as well as on country of origin information.  The applicant did not raise any issue of language problem during the hearing before the Board. Further, the applicant had not specified how the lack of language assistance outside the “hearing” before the Director and/or the Board had affected him,

20.  In the circumstances of this case, it is difficult to see how the level of legal or language assistance provided, in fact resulted in unfairness.

21.  As set out above, the Judge had remarked at [12] of the Form CALL-1 that the applicant clearly had legal assistance in preparing his Form 86 and supporting affirmation.  Upon our review of those documents, it seems the better view is that someone who might have some legal knowledge had assisted the applicant. It is unclear whether the documents were in fact drafted by a lawyer.  This observation, however, does not affect the outcome of this appeal.

22.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

23.  For the reasons above, we are of the view that the appeal has no merit and accordingly we dismiss the appeal.