RE SALEEM MUHAMMAD

CACV 335/2019

[2020] HKCA 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 335 OF 2019

(ON APPEAL FROM HCAL 637/2018)

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JUDGMENT

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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”) given on 12 July 2019 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Pakistan.  According to him, he departed Pakistan for the mainland China on 19 June 2012.  He entered Hong Kong illegally on 27 June 2012, and was arrested by the police on the same day.  He lodged a claim for non-refoulement protection on 30 June 2012.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by a person called Imran and two other men because he witnessed a murder committed by Imran.  The background facts of this case were summarized by the Judge in [2] – [5] of the Form CALL-1 ([2019] HKCFI 1026).

4.  By two notices of decision dated 14 October 2015 and 28 August 2017[1], the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds and determined the claim against the applicant.  The former covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4]; and the latter the BOR 2 risk[5].

5.  The applicant lodged an appeal / petition to the Torture Claims Appeal Board / an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  After reviewing the materials placed before it, the Board decided not to hold an oral hearing.  By a decision dated 23 February 2018, the Board dismissed the applicant’s appeal/petition.  It was found that Imran was not a “state actor” within the definition of torture[6].  The applicant’s perceived fear was based on the threat made by Imran during the murder that anyone who gave statement or reported the matter to the police would also be killed.  Upon the advice of his fellow Muslims, the applicant decided not to do so[7]. As there were many people who witnessed the murder, the Board found no reason why Imran would single him out as the only witness to the murder to be got rid of[8]. It therefore concluded that the applicant failed to substantiate that he would face a genuine and substantial risk of being subjected to ill-treatment if refouled.

The Judge’s decision

6.  The applicant filed his Form 86 on 13 April 2018, seeking leave to apply for judicial review against the decisions of the Director and of the Board.  He set out the grounds for seeking relief in his affirmation filed on the same day in support of the application.  The grounds were summarized by the judge at [11] of the Form CALL-1.  In gist, the grounds for intended judicial review were based on (1) the lack of legal representation, (2) the absence of oral hearing before the Board, (3) the lack of explanation in rejecting his BOR 2 claim, (4) procedural unfairness, and (5) the Director’s treatment of the country of origin information (“COI”).

7.  Upon the request of the applicant, an oral hearing was held on 22 March 2019.  The applicant attended the hearing as scheduled.

8.  As mentioned earlier, the judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [12] – [22] of the Form CALL-1 as follows:

“ 12. 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 standard 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.

13. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to submit his appeal and representation to the Board without difficulty. As such 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.

14. As for his complaint under Ground (2) that the Board failed to apply high standards of fairness when it decided not to hold any oral hearing for his appeal, Cheung CJHC as he then was, in ST v Betty Kwan & Ors [2014] 4 HKLRD 277 already made it clear that there is no absolute entitlement to an oral hearing, as it is ultimately a question of fairness looking at the overall circumstances of the particular case.

15. In the Applicant’s case, given the facts asserted by him as to his claim, the Adjudicator was entitled to make his decision on the basis that the applicant “had set out his case clearly in the Non-refoulement Claim Form and he had attended an interview in which thorough questions about his case had been asked and he had plenty opportunities to explain himself on all matters”, and having “reviewed the whole case preliminarily, I decided not to hold a hearing because I found that no worthwhile and effective representations could be made. I am satisfied that this appeal can justly be determined without a hearing.”

16. It is therefore clear to me that when the Adjudicator decided not to hold any oral hearing, he did not intend to take issue with the Applicant’s credibility as to his assertions for the purpose of his assessment of his claim under the applicable grounds, as he went on to find, correctly in my judgment, that even ‘putting (the Applicant’s case) to the highest that he was threatened of being harmed or killed if he made a statement to the police on the murder of Zaheer’ [52, 59], that the Applicant failed to substantiate his claim under any of the applicable grounds or that he was entitled to non-refoulement protection. In the premises I do not find this ground reasonably arguable in the Applicant’s intended application.

17. Regarding his Ground (3) it is plainly wrong for the Applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 Risk, which the Director clearly did in paragraphs 4–6 of his Notice of Further Decision explain the reasons for rejecting the Applicant’s BOR 2 Claim. Having examined rigorously the Director’s Further Decision, I am unable to find any reasonably arguable basis to challenge his reasons for rejecting the Applicant’s BOR 2 Claim.

18. As for the applicant’s various complaints under Ground (4), they are just some broad and vague assertions 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 decision unfair or unreasonable, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the Applicant in any of these complaints, again I do not see how any of them is arguable for his intended challenge.

19. As for his complaint under Ground (5) over the Director’s reliance of COI in its assessment of the situations in Pakistan and of his claim, again the Applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 13 – 14 of the decision of the Director as well as those considered by the Board, I do not find any basis or merits in this complaint of the Applicant.

20. Furthermore, the fact 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.

21. 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.

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

The Appeal

9.  On 23 July 2019, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

(a)  The Judge’s failure to acknowledge his language incapability was unfair to him;

(b)  The judge failed to consider the significant and the level of unfairness in respect of the applicant’s lack of language assistance;

(c)  The lack of legal representation before the Board and the Court made it difficult for a layman like the applicant to challenge the Director’s decision;

(d)  It was procedurally unfair to have no other revenue of appeal in respect of a decision based on adverse finding of credibility;

(e)  The applicant did not have language assistance at all material times;

(f)  The Judge erred in his consideration of the lack of language assistance as he failed to find that there was no interpretation service available to him after the Director’s decision; and

(g)  If the Director highlighted those parts of the COI materials in the applicant’s favour, he would not have concluded that state protection was available to the applicant.

10.  The applicant lodged his skeleton submissions on 17 December 2019.  In it, he reiterated his ground of the lack of language assistance.  He said that, because of it, he did not submit any further information in respect of his BOR 2 risk.  He requested to have the determination read to him and to let him have a chance to make further submissions.  The lack of language assistance also deprived him of his right to lodge a proper appeal.   The Judge failed to exercise diligent duty of care towards him as a non-represented litigant.  He submitted that his case should be remitted to the lower court. 

11.  By a letter dated 23 July 2019, the applicant gave consent that this appeal might be dealt with by a 2-member court.

12.  We heard the appeal on 16 April 2020.

General Principles

13.  Before we address the merits of this appeal, we would highlight the general propositions that this court has adopted in determining an appeal for non-refoulement cases.

(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 (and the Director);

(2)  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; and

(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 the present case, the Board rejected the applicant’s claim because it was not satisfied that he would face a real risk of being subjected to ill-treatment if refouled.  As explained above, the evaluation of the risk of harm is within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on public law grounds.  After rigorous examination and anxious scrutiny of the materials available before him, the judge found no reasonably arguable basis to challenge the findings of the Board.

15.  The applicant’s major complaint in this appeal relates to the lack of language assistance[9]. This complaint has no merits.  It is beyond dispute that legal representation and language assistance were provided when he completed the Non-refoulement Claim Form[10] and during the interview with the immigration officer[11].  He was also assisted by an interpreter when he appeared before the Judge. 

16.  In any event, as this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

17.  It is further noted that all court documents in relation to the leave application and this appeal were written in English and that the affirmation filed in support of the leave application contained an interpretation clause.  These indicate that either the applicant is conversant with the English language or that he is able to access to language assistance if needed.  We do not accept the assertion that the alleged lack of language assistance would render the process unfair.

18.  The ground regarding the lack of legal assistance[12] is a regurgitation of the argument that had already been canvassed in the Court of First Instance, and duly rejected by the Judge[13].  We do not see any error in the Judge’s analysis.  This ground of appeal must therefore be rejected.

19.  The ground relating to the Board’s adverse finding on credibility (see [9(d)]) is misconceived.  As the applicant rightly acknowledged in his skeleton submission[14], the Board made no finding adverse against the applicant on the factual events though it disagreed with him on the assessment of risk flowing from such events.  In respect of such assessment, the primary point is that the applicant did not give any witness statement to the police and he did not intend to do so.  Thus, there was no reason why Imran would wish to pursue him after all these years.  This ground therefore has no merits whatsoever.

20.  Finally, the ground relating to the Director’s treatment of the COI materials[15] fails for at least three reasons.  First, as this Court held in Re Moshsin Ali [2018] HKCA 546, the Director’s decision was no longer susceptible to judicial review when appeal to the Board was pursued.  Secondly, as explained above, the evaluation of COI materials was within the province of the Director.  In absence of any public law ground, the court will not intervene with such evaluation.  Thirdly, this ground had already been advanced before, and duly rejected, by the Judge[16].  The applicant failed to pinpoint any error in the Judge’s analysis such that the Judge’s decision could be reversed.

21.  Nor do we find anything amiss in the Judge’s analysis on the Board’s determination of the applicant’s BOR 2 risk[17].  In our view, there is no basis for the applicant to challenge the Board’s determination.  On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk independent from the BOR 3 risk, the persecution risk, and the torture risk.

22.  In this appeal, the applicant did not provide any viable ground that could reverse the decision of the Judge.  Having considered the materials available before us, we cannot find any of such ground either.  In our view, the Judge’s observations are fully justified.  We agree with the Judge that leave to apply for judicial review should be refused.

23.  For these reasons, we dismiss the appeal.