MEHMOOD NASIR v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 434/2019

[2020] HKCA 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 434 OF 2019

(ON APPEAL FROM HCAL NO 1663 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung (“the Deputy Judge”) as set out in the Form CALL‑1 dated 11 September 2019 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 2248. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 6 July 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 8 February 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  By a letter dated 17 September 2019, the applicant gave consent to the appeal being heard by a two-member court. 

A.   Background

3.  The applicant is a national of Pakistan.  He entered Hong Kong on 8 May 2013 illegally and was arrested by the police on the same date.  He lodged a non-refoulement claim on 11 March 2014.  

4.  The details of the applicant’s claim and his personal background were set out in paragraphs 5-18 of the Director’s Decision, and paragraphs 3-5 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that he would be harmed or killed by his neighbour’s sons.  The applicant said that he accidentally killed his neighbour.  Although he attempted to settle the matter by paying the deceased’s family PKR 30,000 (equivalent to around HKD 2,000), a son of the deceased called and threatened him.  He dared not to report the matter to local police as the neighbour was rich and powerful.  He moved to another town and tried to make a complaint to the police but the police did not record his complaint for the reason that there was insufficient evidence.  Out of fear, he fled to Hong Kong.  

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

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

7.  The applicant appealed the Director’s Decision to the Board.  The appeal was fixed to be heard on 16 April 2018.  However, the applicant failed to attend the hearing without any explanation.  After a careful consideration of the documents available before it, the Board refused to accept the applicant’s claim.

8.  Without the applicant’s attendance, the Board was unable to evaluate his credibility.  The Board found that the applicant’s claim was vague and unsubstantiated on papers and attached no credence to any part of his claim.  Further, the Board found that internal relocation was available to the applicant (paragraphs 15-42 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.  

C.   The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 17 August 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review were summarized by the Deputy Judge at paragraph 11 of the Deputy Judge’s Decision as follows:

“11. In his affirmation in support of his application dated 17 August 2018, the applicant relied upon the following grounds:

(1) no language assistance for his appeal;

(2) the hearing bundle was given to him shortly before the hearing and he did not understand the language;

(3) no legal representation for his appeal;

(4) Board’s Decision was not translated to him;

(5) there was no hearing for the appeal-unfair.”

10.  The Deputy Judge heard the applicant’s leave application on 28 February 2019.  During the hearing, an interpreter was arranged for the applicant.  After the hearing, 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 12-23 of the Deputy Judge’s Decision:

“The Director’s Decision

12. In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13. The applicant has not set out any exceptional circumstances.

14. Also, the Court of Appeal in Re: Moshsin AliCACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

15. The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16. The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

17. He was asked why he did not attend the hearing before the Board. He said he had knee pain. But he did not ask for another hearing.

18. It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

19. The Court of Appeal in Re Magar Surendra [2019] HKCA 667,13 June 2019 held that no language assistance for the applicant cannot be a ground in support of his judicial review. Grounds (1) and (4) fail.

20. Ground (2) fails as he said that his friend had explained the hearing bundle for him.

21. The Court of Appeal in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant has not absolute right of free legal representation at every stage of the proceedings. Ground (3) fails.

22. The Adjudicator said in the Board’s Decision that the applicant failed to appear before the Board without any explanation or excuse [15]. He was entitled to consider the applicant’s appeal on the evidence before him. Before me, the applicant said that he had knee pain and he did not attend the hearing before the Appeal Tribunal. But he did not ask for another hearing. He cannot complain that there had not been hearing for him. Ground (5) fails.

23. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

D.   Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 17 September 2019 to appeal the Deputy Judge’s Decision.  His grounds of appeal were listed in a document titled “Enclosure 1” attached to the Notice of Appeal.  His grounds are that (1) against the Director – the Director failed to appreciate the presence of state acquiescence; failed to consider that the applicant was tortured by the police and other law enforcement agencies; failed to consider inadequate state protection; failed to take such arguments into account before reaching the decision; failed to consider relevant country of origin information; only used country of origin information that supported the Director’s preconceived conclusion; failed to consider the corruption of the Pakistan government and failed to attain high standard of fairness; (2) against the Board – the Board failed to conduct sufficient inquiries before finalizing its determination and failed to allow the applicant to arrange relevant evidence in support of his claim.  

12.  Pursuant to Master Au-Yeung’s directions dated 30 October 2019, the applicant filed his skeleton submissions on 22 January 2020.  In that, he stated that he intended to appeal against the decisions of the Board and the Director.  He repeated his personal background and his claim.  Apart from that, he did not elaborate on the grounds of appeal nor did he identify any errors in the Deputy Judge’s Decision.

13.  At this hearing, the applicant confirmed that he had nothing further to add to what had already been set out in the Notice of Appeal and the written submission in support of this appeal.

E.   Discussion

14.  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.

15.  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.

16.  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.

17.  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).

18.  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.

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

20.  The applicant failed to identify any viable grounds to challenge the Deputy Judge’s Decision.  All the grounds in the Notice of Appeal were against the decision maker, i.e., the Board and the Director, which had been addressed by the Deputy Judge.  Thus, in absence of any identified viable grounds advanced by the applicant against the Deputy Judge’s Decision, we dismiss this appeal.  

21.  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

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