RE RAHMAN ZAIWR UR

CACV 164/2020

[2020] HKCA 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2020

(ON APPEAL FROM HCAL 289 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL-1 dated 1 June 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 470.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 2 February 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated respectively 7 August 2015 (“the Director’s First Decision”) and 24 October 2016 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  By a letter dated 10 June 2020, the applicant gave consent to the appeal being heard by a two-member court.

A.  Background

5.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 22 August 2014 and surrendered to the immigration department on 24 September 2014.  He lodged a non-refoulement claim on 28 November 2014.

6.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s First Decision, and paragraphs 4 - 18 of the Board’s Decision.

7.  Briefly stated, the applicant claimed that he would be harmed or killed by his influential paternal uncle Muhammad Hilal (“MH”) due to a land dispute.  MH intended to seize the land that was passed on to the applicant and his brothers by their late father.  When they were little, MH harassed and assaulted their mother for the land.  In 2002, MH shifted the target to the applicant as MH saw the applicant as his only obstacle to obtain the land.  In the years of 2002, 2004 and 2005, the applicant was assaulted by MH and his associates with wooden sticks.  In the last assault, the applicant was severely injured and hospitalized.  Out of fear, in 2007, he fled to Malaysia.  While staying there, the applicant was told by his mother and neighbours that MH had been looking for him everywhere.  Worrying that it was not safe to stay in Malaysia, the applicant came to Hong Kong for protection in 2014.

B.  The Director’s Decisions and the Board’s Decision

8.  The Director assessed the BOR3 risk[1], the persecution risk[2], and the torture risk[3] in the Director’s First Decision while the Director’s Second Decision covered the assessment of the BOR2 risk[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

9.  The applicant appealed the Director’s Decisions to the Board.  A hearing for the appeal was fixed on 29 December 2016 but the applicant failed to attend as scheduled.  The Board then proceeded to consider his appeal on papers.  Having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

10.  The Board first considered the information provided by the applicant in his non-refoulement claim form (“NCF”).  It found that there were inconsistences of material facts in his answers in the NCF with those given in his interview with the immigration department.  These discrepancies remained unclarified and unsolved due to the applicant’s absence from the hearing.  As a result, the Board found that the information given in his NCF was untruthful and incredible (paragraphs 26 - 41 of the Board’s Decision). Alternatively, the Board found that internal relocation and state protection were both available to the applicant (paragraphs 43 - 52 of the Board’s Decision).  Thus, the Board dismissed his appeal.

C.  The Deputy Judge’s Decision

11.  The applicant filed a Form 86 on 23 February 2018 seeking leave to apply for judicial review against the Board’s Decision.  The grounds of review stated in his supporting affirmation filed on the same date were lengthy.  They were categorised under grounds of irrationality, procedural impropriety and unfairness.  Some of the grounds were repetitive.  They were succinctly summarized by the Deputy Judge at paragraph 12 of the Deputy Judge’s Decision as follows:

“12.  On 23 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  irrationality in failure to consider the concept of state acquiescence;

(2)  procedural impropriety in making insufficient inquiry;

(3)  failure to provide adequate reasons as to decision made;

(4)  procedural impropriety/unfairness in failure to investigate into the Country of Origin Information of Pakistan;

(5)  irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6)  irrationality in failure to consider a consistent system of human rights violations;

(7)  irrationality in failure to consider if state protection exists in Pakistan;

(8)  irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

(9)  procedural impropriety in failing to call for psychological and/or psychiatric reports and/or evaluations;

(10)  procedural impropriety in applying the incorrect standard of proof;

(11)  no reasonable basis for rejecting the credibility of his claim;

(12)  failure to consider the extended form of state acquiescence;

(13)  failure to fully consider the COI reports in assessing risk to the Applicant;

(14)  irregularity of the decision-maker being a different person than the interviewing officer; and

(15)  no proper basis for consideration of internal relocation.”

12.  The applicant did not request an oral hearing.  After considering the available documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 13 - 18 of the Deputy Judge’s Decision:

“13.  These 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 Board or the adjudicator had erred in the decision, or in what way was the concept of state acquiescence or its extension relevant to his case, or how did the adjudicator fail to apply the correct test on credibility or to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of which I am unable to find any basis or merits in any of these grounds, or that any of them is reasonably arguable for his intended challenge.

14.  As for his complaint that his appeal before the Board was heard by someone other than the interviewing immigration officer, I fail to see the rationale for requiring his appeal to be heard by the same person, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and there is simply no basis or merit in this complaint of the Applicant.

15.  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 being 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.  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.

17.  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.

18.  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.”

D.  Grounds for appeal

13.  The applicant filed the Notice of Appeal on 10 June 2020 to appeal the Deputy Judge’s Decision.  His grounds of appeal were that:

“Judges are unfair to examine the decision of TCAB and NFC because they i can’t relocate anywhere in pakistan. i already located different cities in pakistan. there was significant in the TCAB hearing but unluckily i missed it. my opponents still bothering my family because of the land. they broke our house windows and other things. they attacked my house twice in last two months, i am sure they will not leave me alive until they get my land but still some villager senior talking to them to solove this problem.” [sic]

14.  Pursuant to Master Tsui’s directions dated 11 July 2020, the applicant filed his skeleton submissions on 17 July 2020.  In that, he only repeated the grounds he stated in his grounds of review before the Deputy Judge without elaborating why the Deputy Judge was wrong in refusing them.  He argued that: (a) the Board had unlawfully fettered its discretion by refusing his appeal and the refusal was unreasonable, or irrational in the public law sense or was the result of procedural unfairness; (b) the Board failed to apply the high standards of fairness owed to a self-represented claimant; (c) the delay in serving the hearing bundles to him had left him insufficient time to prepare due to language barrier; (d) the Board relied on outdated source of news; (e) the Board failed to give sufficient weight to the extended concept of state acquiescence and its conclusion that the Government was taking steps to protect the civilian was mere speculation; and (f) and the Board failed to make sufficient enquiries before finalizing its decision.

15.  He also complained against the Director that: (a) the Director failed to consider the concept of extended acquiescence; and (b) the Director’s conclusion as to the country of origin information was contradictory. He then quoted some paragraphs from Ubamaka v Secretary for Security [2012] HKCFA 87 and cited questions in relation to the assessment mechanisms and procedures implemented by the immigration department.  However, he did not explain how these authorities would assist him in the present application.  Again, the applicant did not identify any errors in the Deputy Judge’s Decision.

16.  At the hearing, the applicant confirmed that he had nothing further to add to what have already been set out in the Notice of Appeal and the written submissions.

E.  Discussion

17.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

18.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

19.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

20.  Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

21.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

22.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

23.  As mentioned earlier, the applicant did not in his Notice of Appeal or his written submissions identify any specific errors in the Deputy Judge’s Decision.  The only ground of appeal against the Deputy Judge is that he was unfair in examining the Board’s Decision in relation to the issue of internal relocation.

24.  However, this argument has no merits.  The Deputy Judge at paragraphs 15 - 16 of the Deputy Judge’s Decision correctly reminded himself that the evaluation of risk of harm was primarily the task of the Board and the Director and, after examining the Director’s Decisions and the Board’s Decision, he agreed with them that the risk of harm to the applicant, if any, was a localized one and it was not unreasonable for him to relocate to other parts of Pakistan.  Further, the applicant did not identify any public law errors with particularities in the Board’s conclusion on internal relocation.  As general assertions without particulars cannot be effective grounds to support a judicial review, the Deputy Judge is therefore correct in affirming the Board’s conclusion that internal relocation was reasonable and the applicant’s complaint does not give rise to any basis to suggest otherwise.  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.

25.  With regard to the applicant’s arguments against the Director’s Decisions, they also do not assist him since it is well established that the Director’s Decisions had been superseded by the Board’s Decision and therefore not generally amendable to judicial review: see Re Moshsin Ali [2018] HKCA 549 and Re Azharuddin Sk [2020] HKCA 711.

26.  As to the rest of the grounds of appeal against the Board’s Decision, these are not proper grounds of appeal as they are the same as those advanced but failed before the Deputy Judge.  As explained above, this appeal is not the avenue for him to regurgitate any arguments raised in relation to the Board’s Decision. The only ground he did not raise before the Deputy Judge was the delay in serving the hearing bundles to him.  However, as this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)]. These are therefore not valid grounds to challenge the Deputy Judge’s Decision.

27.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

28.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.