RE MUHAMMAD USMAN

CACV 137/2018

[2018] HKCA 474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 137 OF 2018

(ON APPEAL FROM HCAL 482/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 20 April 2018 refusing leave to apply for judicial review.

2.  On 11 June 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions.  He also directed that if such submissions were not lodged within the prescribed time (ie not less than 28 days before the hearing), the applicant would be deemed to have waived his right to have an oral hearing and elected to have this appeal disposed of on paper.  For the court’s approach towards a failure to lodge written submissions: see Re Manjit Kaur [2018] HKCA 247, para 10; Re Miha Md Limon [2018] HKCA 278, para 12; Re Ali Arshad [2018] HKCA 304, para 10; and Re Sk Sarfaraj [2018] HKCA 307, para 10.

3.  On 21 June 2018, the hearing of this appeal was fixed for 2 August 2018.  When the hearing date was fixed, the applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

4.  Despite the directions and reminder, the applicant did not lodge any skeleton submissions.  Accordingly, the hearing date was vacated, and we now deal with this appeal on the basis of the material before us.

Background

5.  The applicant is a Pakistani national. Before his last entry to Hong Kong in June 2007, he had entered Hong Kong by using passports under different identities in 2000 and 2001 respectively. On each occasion, he was arrested by the police for overstaying and deported back to Pakistan.  He last entered Hong Kong, via the Mainland, illegally on 20 June 2007 and was arrested by the police on 23 January 2008.  He lodged his torture claim on 11 February 2008.  His claim was taken to be a non‑refoulement claim upon the commencement of the Unified Screening Mechanism in March 2014.

6.  The applicant’s non‑refoulement claim was based on the fear that, if he returned to Pakistan, he would be harmed, or even killed, by members of an Islamist extremist organisation called Lashkar‑e‑Taiba (“LeT”) because he refused to do voluntary works for them after suspecting that they might have distributed bombs in the guise of food parcel.  It was the applicant’s case that he was framed by LeT for several murders and was arrested and detained by the police as a result.  The applicant further claimed that, on each occasion when he was deported back to Pakistan, the LeT people were able to locate him and made threats to him.  He was slapped on the face several times by the LeT people in May 2007, which eventually prompted him to leave for the Mainland.

7.  By a notice of decision dated 24 July 2015, the Director of Immigration rejected his claim.  Although the applicant claimed to have been ill‑treated by the police during his detention, his injuries were apparently not serious and did not require any medical treatment.  He recovered within weeks.  The director considered that the injuries inflicted by the police or by the LeT people did not attain the minimum level of severity required by case law.  Furthermore, given the lapse of time, the director was not satisfied that the LeT people would still have an interest in pursuing the applicant.  The director considered there was no reliable evidence to suggest that the applicant would face a risk of being harmed by LeT or the police under the influence of LeT if he returned to Pakistan.  The director also considered that the Pakistani government had taken steps to combat terrorist groups such as LeT, and state protection was available to the applicant.  Internal relocation was also a viable option for him.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

8.  By a notice of further decision dated 24 October 2016, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and determined it against him.

9.  The applicant appealed to the Torture Claims Appeal Board.  After an oral hearing held on 13 January 2017, the board found that the applicant’s evidence on his arrest and the persons involved was imprecise.  The board could not conclude that there was state acquiescence.  The board also found it inexplicable as to why LeT would engage the police in such a convoluted manner as claimed by the applicant in order to coerce him to do voluntary work for them.  The charge against the applicant was also found to be inconclusive.  The board took the view that if there were indeed any charge filed against the applicant, the police would be duty bound to investigate it.  The board did not accept that the applicant was targeted by LeT as claimed.  The board also shared the director’s view that state protection was available to the applicant and internal relocation was a viable option for him.  The board concluded that the applicant’s case for non-refoulement was not substantiated and dismissed the appeal on 6 July 2017.

The deputy judge’s decision

10.  The applicant filed the form 86 on 4 August 2017. In the form, the applicant simply put down “Director of Immigration” in the entry for “Judgment, order, decision or other proceeding in respect of which relief is sought”.  No ground for seeking relief was given in the form.  In his supporting affirmation dated 4 August 2017, the applicant simply deposed that:

“I am not satisfied with decision. My life really in danger. I can not go back to my country. So kindly consider my application to make judicial review. Pls see [attachment] Ext 1 total 6 pages.”

11.  The applicant did not request for an oral hearing for his application for leave to apply for judicial review, and accordingly no hearing was held.  After summarising the facts and considering the decisions of the director and the board, the deputy judge gave the following reasons in refusing leave to apply for judicial review in the CALL-1 form dated 20 April 2018:

“16. It is clear to me that the applicant has failed to put forward any grounds of review, and whilst those decisions of the Director and the Board are subject to judicial review, the court does not sit on appeal from those decisions or look at their merits for rejecting or dismissing his claim, as it only plays a supervisory role in the judicial review as stated by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526 at para 40.

17. Nevertheless, in scrutinizing these decisions it is plain to me that both the Director and the Board considered the applicant’s claim on all applicable grounds and applied all the relevant criteria, took into account properly ample and objective COI relevant to his case including those provided by him and his legal representative, engaged in a joint endeavor with him in the enquiry of his case despite the onus being upon him, and afforded him with ample opportunities to state his case and present his evidence and materials before arriving at their decisions.

18. Having considered these decisions with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in any of them, or any failure on the part of either the Director or the Adjudicator for the Board to apply high standard of fairness in their assessments of the applicant’s claim, or that any of their decision is Wednesbury unreasonable in the public law sense.

19. 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, and accordingly I refuse his leave application.”

The appeal

12.  The applicant filed the notice of appeal on 4 May 2018.  The notice of appeal did not contain any grounds of appeal.  In his supporting affirmation dated 4 May 2018, the applicant contended:

(a)  The deputy judge’s decision was unfair because it was made without an oral hearing; and

(b)  Internal relocation was impossible and state protection did not exist.

13.  By a letter dated 17 May 2018, the applicant consented to this appeal being heard by a two-judge court.

Discussion

14.  We do not find it reasonably arguable to challenge the deputy judge’s decision on the ground that it was made without an oral hearing.  As we have mentioned, the applicant did not request for one when he made his application for leave to apply for judicial review.  Under Order 53, rule 3(3) of the Rules of the High Court (Cap 4A), a judge may deal with an application for leave to apply for judicial review without a hearing, unless a hearing is requested in the notice of application for leave.  The applicant has already had an oral hearing before the board, in which he had an opportunity to advance his case.  The applicant has not explained why an oral hearing should be held by the deputy judge.  In those circumstances, we cannot find any reasonable basis to criticise the deputy judge for determining the application for leave to judicial review without a hearing.

15.  We note that state protection and internal relocation were not relied on as grounds in the form 86 or the applicant’s supporting affirmation for leave to apply for judicial review.  As we have said repeatedly, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below.  The same applies to an application for leave to apply 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: see Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; and Wong Ho Tong v Director of Lands [2018] HKCA 330.

16.  In any event, we do not consider the grounds relating to state protection and internal relocation to be meritorious.  The director made detailed assessments regarding these issues in paragraphs 45 and 46 of his first decision; so did the board in paragraphs 123‑167 of its decision.  The applicant has not identified any legal errors in these assessments.  We do not find any either.  As we have said many times before, evaluation of the risk of harm is primarily a matter for the director and the board, and they are entitled to make their evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.  In the absence of any legal error, judicial review is not an avenue for revisiting the assessment by the board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

17.  Having considered the material available before us, we are of the view that the deputy judge’s observations are justified.  We do not find any errors of law or procedure in the proceedings before the board or the director.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of merits of a non‑refoulement claim is essentially a matter for the director and the board, not the court.

18.  For these reasons, we do not see any prospect of success in the intended application for judicial review, agree with the deputy judge that leave to apply for judicial review should not be granted to the applicant, and dismiss the appeal accordingly.