LATIF MASOOD v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 44/2019

[2019] HKCA 501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 44 OF 2019

(ON APPEAL FROM HCAL NO 280 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 25 January 2019, refusing to grant leave to the applicant to apply for judicial review.

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 80.  We shall not repeat the same here.

3.  Briefly stated, the applicant is a national of Pakistan.  He entered Hong Kong illegally on 22 January 2014 and was arrested by the police on the same day.  He was referred to the Immigration Department for investigation and on 25 January 2014, he lodged his non-refoulement claim.  The applicant’s claim was based on his fear that he would be harmed or even killed by Adil, Amer and their subordinates because of a business dispute in which the applicant and his brother insisted in demanding Adil to repay them the investment money in a jointly owned company named AAS Construction Business (“the Company”) as Adil intended to take over the entire Company.

4.  By a Notice of Decision dated 29 January 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 16 June 2017, the Director rejected his claim on BOR 2 risk.

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After the hearing on 10 October 2017, the Board dismissed the appeal on 29 December 2017.  It was the applicant’s case that if he were refouled, he would inevitably demand Adil for repayment and that in turn would cause Adil to kill or harm him.  The Board found that Adil was unlikely to cause harm to the applicant unless and until the applicant took action to pursue his investment money.  The Board further found that internal relocation was possible and reasonable for the applicant for his alleged risk of harm and it was unnecessary to comment on the country of origin information (“COI”) in his case.  The Board found that the applicant did not face any risk of harm if refouled and rejected his claim under all applicable grounds.

THE JUDGE’S DECISION

6.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 22 February 2018 contains the following grounds for the applicant’s intended challenge :

(1)   the Director and the adjudicator had wrongly assessed his non-refoulement claim;

(2)   the decisions were unreasonable and unfair under the Wednesbury test;

(3)   the decisions failed to take into account that the right to life must be protected from extra-judicial killings which he would face if deported to Pakistan; and

(4)   the Board had failed to give him sufficient time and chance to arrange relevant evidence for his appeal.

7.  On 25 January 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [12] – [17] for his refusal to grant leave :

“ 12. These are however mostly 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 Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or how were extra-judicial killings relevant to his case. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of such particulars I am unable to see any basis or merit in any of his complaints.

13. His complaint that he was not being given sufficient time or opportunity to submit relevant evidence for his claim or appeal is also entirely without merits, as he never raised any such issue nor requested for time during his oral hearing before the Board. Even now in his application and his oral hearing before me that he did not submit any further or additional materials or representation for his claim.

14. The fact is that the applicant’s claim was rejected by both the Director and the Board essentially on his credibility as to the centerpiece of his claim based on the evidence before them of which they were entitled to do so, as has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm in a non-refoulement claim 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 Re Litoun Mounsy [2018] HKCA 537.

15. Further, as it has also been established by the Director and the Board in their respective decision that even if the risk of harm in the applicant’s claim were true, that it 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.

16. In the premises and having proceeded to consider 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 clai.

17. 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.”

The Appeal

8.  In the Notice of Appeal filed on 30 January 2019, the applicant did not provide any grounds of appeal.

9.  In the written submissions, the applicant contended that the Judge had failed to assess the actual situation in Pakistan where the government could not protect its people especially for the minorities and human rights were violated.  He further complained that the Board had failed to carry out proper and sufficient enquiries into the relevant COI when assessing the risk of harm faced by him if refouled.

10.  We heard the appeal on 30 April 2019.  The applicant did not make any oral submission.

DISCUSSION

11.  This court has repeatedly emphasised that evaluation of the risk of harm in a non-refoulement claim 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 and 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, 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 Re Litoun Mounsy [2018] HKCA 537.

12.  We agree with the Judge’s findings at [14] and [15] of the CALL-1 Form that that the applicant’s claim was rightly rejected by the Director and the Board essentially on his credibility and it was not necessary for the Board to assess COI or state acquiescence.  We further note that on his own evidence before the Board, Adil would harm the applicant when he returns to Pakistan only if the applicant demanded Adil to repay the monies that he owes the applicant, which the applicant is in any event unable to do while he remains in Hong Kong.  In the circumstances, it appears to us that the risk of harm alleged by the applicant is just an excuse to prolong his stay in Hong Kong.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and endorse his conclusion that there is no reasonable basis to upset the Board’s decision by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.