RE HUSSAIN WAJID

CACV 635/2020

[2021] HKCA 1094

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 635 OF 2020

(ON APPEAL FROM HCAL 584/2020)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 26 November 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Director of Immigration (“Director”) dated 27 March 2020 rejecting the applicant’s request for the making of a subsequent claim for non-refoulement protection on the grounds that there had been a significant change of circumstances since his previous claim was made.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 16 May 2014 illegally and was arrested by the police on 21 May 2014.  He lodged a non-refoulement claim on 28 May 2014.  His claim was rejected by the Director on 6 January 2016 and 27 March 2017 and his appeal to the Board was dismissed on 4 August 2017.  The applicant applied for leave for judicial review which was dismissed by DHCJ Woodcock on 19 June 2018. His application for extension of time to appeal against the decision by DHCJ Woodcock was dismissed by the Court of Appeal ([2018] HKCA 664, per Chu JA and Barma JA) on 5 October 2018.  His application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 18 January 2019 ([2019] HKCA 66).

3.  In December 2019, the applicant applied to the Director to make a subsequent claim for non-refoulement protection under the unified screening mechanism.  By a Notice of Decision dated 27 March 2020, the Director dismissed the application.

4.  The Director considered the basis relied on by the applicant for the previous claim for non-refoulement claim, namely that he would be harmed or even killed by the people of Azad Kashmir People party (“AKPP”) as he was a supporter of the opposition party Pakistan Muslim League Nawaz (“PMLN”) and the matters raised by the applicant for the application to make a subsequent claim.  The Director held at [12] that the matters relied on by the applicant did not constitute any change of circumstances which would warrant the making of a subsequent claim.

The judge’s decision

5.  The applicant filed a Form 86 on 9 April 2020 seeking to judicially review the Director’s Decision dated 27 March 2020 which contained no ground for seeking relief.

6.  In his affirmation in support of the leave application filed on 9 April 2020, the applicant claimed that the Director rejected his claim without any proper inquiry and without carefully understanding his situation.  He invited immigration officers to tour his country to understand the real danger he faced.

7.  After summarizing the facts and background of the case and giving due consideration to the decision of the Director, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [14] to [18] of the CALL-1 Form:

“14. On 9 April 2020 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of that decision of the Director, but no ground for seeking relief was given in his form, and in his supporting affirmation of the same date he merely claimed that the Director reached the wrong decision in assessing his claim without any proper inquiry or understanding, and invited the immigration officer to tour his country to see what real danger he would face if he was to return to Pakistan but without providing any details or particulars or elaboration how and why it was so, nor did he do so at the hearing of his application.

15. For a person who has previously made a torture claim or non-refoulement claim, Section 37ZO of the Ordinance provides limitation on subsequent claim by such a person as follows:

‘(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.’

16. Accordingly, in his refusal of the Applicant’s request to make a subsequent claim, the Director did rely on, as he was entitled to, those facts found by the immigration officer and the Appeal Board in relation to his previous claim as set out in paragraph 9 of the decision, including the fact that the claimed risk of harm from those AKPP supporters was localized and that there were viable options for the Applicant to relocate to other area away from his home district upon his return to Pakistan, and that none of the basis now put forward by him as detailed in paragraph 11 of the decision constituted any change of circumstances that may justify the making of a subsequent claim. As such and in the absence of any error of law or procedural unfairness in his process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

17. Furthermore, the principle of res judicata clearly applies to the primary basis of the Applicant’s proposed subsequent claim, and that it seems to me an abuse of process for him to re-litigate his case by trying to raise what is essentially the same non-refoulement claim based on the same facts before the Director as before but disguised as a subsequent claim.

18. In the premises and for these reasons, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of the Director’s decision not to allow his subsequent claim, and I accordingly refuse his leave application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 4 December 2020, the applicant stated that:

“I will face hardship if I return back to his home country and that the [Director] has significantly relied on the source of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations”

9.  In his affirmation of the same day filed in support of the appeal, the applicant deposed that:

“Affirmation for leave to Court of Appeal against the order …on 26-Nov-2020. Because I totally disagree with the decision of authorities…”

10.  In his skeleton submissions lodged on 29 June 2021, the applicant submitted that:

(1)  the Board and the Director did not determine his case fairly;

(2)  the applicant urges the authorities to take into account the real procedural unfair throughout the case and put public policies of trying to dispose of non-refoulement claim as quickly as possible aside;

(3)  the applicant disagrees with the observations made by the Director and the Board and the assessment that state protection is available in Pakistan;

(4)  the Director unlawfully fettered his discretion and acted in a procedurally unfair manner.  The Director’s decision was unreasonable or irrational in the public law sense or a result of procedural errors of unfairness; and

(5)  the authorities unlawfully discriminated against non-refoulement claimants.

11.  The applicant agreed by a letter of 4 December 2020 that the appeal could be heard by two judges.  We heard the appeal on 26 July 2021.

Discussion

12.  This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the decision maker’s part. On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review.

13.  None of the matters mentioned in the Notice of Appeal or the written submissions engage with the judge’s reasons for dismissing the application.  They identify no error on the judge’s part, but make complaints in relation the decision of the Director.  Complaints are also made about a decision by the Board, but there was no such decision here, the only relevant decision being the Director’s Decision to reject the request to make a subsequent claim.

14.  It follows that no viable grounds of appeal have been put forward.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.