RE RIZWAN RAJA

CACV 268/2018

[2018] HKCA 959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 268 OF 2018

(ON APPEAL FROM HCAL 557/2017)

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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 Woodcock given on 14 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 2 June 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 5 January 2016 and 5 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 16 November 2013 illegally and was arrested by the police on the same day

3.  The applicant’s claim was based on threats from his relatives.  The details of the applicant’s claim have been summarised by the judge at [3] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 5 January 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 5 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 20 January 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 2 June 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [40] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [55] that state protection would be available for the applicant and at [56] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 25 August 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 25 August 2017, the applicant advanced various grounds for judicial review which are summarised below:

(1)   the decision maker cherry-picked Country of Origin Information;

(2)   the decision maker failed to state why it preferred those COI material which support the decision maker’s decision but not the other COI;

(3)   the decision maker failed to properly analyse the COI;

(4)   officer erred in assessing the level of harm to be low;

(5)   the decision maker failed to consider the concept of extended state acquiescence;

(6)   the officer failed to give sufficient weight to past ill treatment, failed to take into account or put sufficient weight on highly relevant information and COI;

(7)   the officer failed to evaluate and make a finding as to whether Pakistan shows a consistent pattern of violation of human rights;

(8)   the decision maker was being selective when evaluating the COI;

(9)   the officer erred in not accepting that the applicant faced genuine and substantial risk of being subject to ill-treatment. 

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [14] of the CALL-1 Form:

“9. I have considered with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions in the oral hearing. I find the adjudicator’s decision to be without fault. She analysed material, the claim and his evidence carefully. The applicant’s complaints against her and the procedure undertaken are not made out. There is no substance in the grounds of this application.

10. The applicant did submit a photograph of a police report that the applicant says related to the police report he had made when his father was shot. He said the police did not accept it or do anything about investigating his murder. The applicant says he only recently received that report and it was not placed before or submitted and considered by the Director or the adjudicator of the TCAB. I explained to the applicant that new evidence not considered by the adjudicator would not be considered by this court in an application for leave to apply for judicial review of that adjudicator’s decision. I advised him to approach the Director of Immigration if he had grounds for another claim. I note that the applicant had never even mentioned a police report to the Director or the adjudicator of the TCAB.

11. In the supporting affirmation the grounds are convoluted and not so easy to decipher but the applicant accuses the Director of procedural impropriety, error in law and a failure to consider Country of Origin information objectively. The adjudicator is accused of failing to consider State protection properly and failing to consider human rights abuses in Pakistan. There are no particulars to support any of the grounds put forward by the applicant.

12. There are accusations that the adjudicator has failed to consider the behaviour of the police who did not investigate the applicant’s father’s murder. There is no mention that the applicant reported his father’s murder in the adjudicator’s decision. There are criticisms of the adjudicator’s findings such as her finding that he faced no genuine and substantial risk of being subjected to torture. The adjudicator has given full reasons for her findings which I find reasonable. She gave full reasons for not believing the applicant. I would not interfere with any of her findings.

13. I see no fault in her decision nor any error of law made by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

14.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 26 June 2018 the applicant said that:

“My father was killed by other party, if I go back to Pakistan same will happen to me. My two of other brothers were killed as well. I don’t want to get killed. My all family left my home. No one listen to me. Police is fully under their control. Please re-consider my matter and allow me to stay in Hong Kong in order to save my life.”

12.  In his skeleton submissions dated 12 November 2018, the applicant advanced 8 grounds all based on alleged errors committed by the Director.

13.  The applicant agreed by a letter of 29 June 2018 that the appeal could be heard by two judges.  We heard the appeal on 13 December 2018.

Discussion

14.  The Board held at [40] of Board’s Decision that the applicant’s case was not credible. At [13] of CALL-1 Form, the judge held that she could not find any fault or error in the Board’s Decision.  The applicant did not identify any error committed by the judge in arriving at this conclusion, nor can we see any good reason why this finding by the Board should be overturned.  As this court has repeatedly emphasised, the primary decision makers on questions of fact are the Director and the Board and a judicial review is not a further appeal in respect of such findings.  It is rather concerned with the process by which the findings were reached.  Like the judge we can see no error in the process before the Board.  We would therefore dismiss this ground of appeal.

15.  As for the grounds in the skeleton submissions, they are concerned with the alleged errors committed by the Director.  They do not identify any error in the judge’s decision, and are thus not viable grounds of appeal. 

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