RE SOHAIL ASIF

CACV 219/2021

[2021] HKCA 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 219 OF 2021

(ON APPEAL FROM HCAL NO 282 OF 2020)

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J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

Introduction

1.  On 23 April 2021, Deputy High Court Judge K W Lung (“the Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Director of Immigration (“the Director”)  dated 29 January 2020 refusing the applicant’s request to make a subsequent non-refoulement claim.

2.  On 5 May 2021, the applicant filed a Notice of Appeal against the Judge’s decision, followed by a Supplementary Notice of Appeal on 21 July 2021.

Background

3.  The applicant is a Pakistani national.  He arrived in Hong Kong on 3 March 2009 and was permitted to remain as a visitor until 10 March 2009.  He did not depart and has overstayed. The applicant was arrested by police on 7 July 2009 for overstaying, and lodged his non-refoulement claim on 8 July 2009.

4.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his late girlfriend’s family members, who were opposed to their relationship.

5.  By notices of decision dated 6 March 2015 and 4 November 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], torture risk[3], and the latter covered BOR 2 risk[4].

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”)  against the Director’s decisions dated 6 March 2015 and 4 November 2016.  The Board rejected the applicant’s appeal on 19 May 2017.

7.  The applicant sought leave from the court to apply for judicial review against the Board’s decision dated 19 May 2017. On 11 May 2018 Deputy High Court Judge Josiah Lam refused to grant leave to apply for judicial review in HCAL 304/2017 ([2018] HKCFI 998). The applicant’s appeal against that refusal of leave for judicial review was dismissed by the Court of Appeal on 3 August 2018 in CACV 178/2018, due to the applicant’s non-compliance with the Court’s unless order of 19 July 2018. Leave to appeal to the Court of Final Appeal was refused on 10 December 2018 ([2018] HKCA 889).

8.  By letter of 21 October 2019, the applicant wrote to the Director, requesting to make a subsequent non-refoulement claim.  By notice of decision dated 29 January 2020, the Director refused the request to make a subsequent non-refoulement claim. In doing so, the Director considered previous findings of fact by the Director or the Board that:

(a)  the alleged ill-treatment was of low intensity and low frequency;

(b)  the Board held that the applicant’s allegation of his enemies going to look for him was hearsay and illogical

(c)  the Director found no indication that the applicant’s enemies had been mobilizing or would mobilize resources to search for him throughout Pakistan

(d)  the Director found that the risk of harm was localized and that internal relocation was viable

(e)  the Board held that since the applicant was now in Hong Kong and out of reach of his enemies, it was illogical for his family not to disclose his whereabouts and the trouble of the family from his enemies was self-induced if true;

(f)  the Board did not accept that the applicant’s enemies were very powerful and connected with senior government officials and police, as such assertions were pure hearsay and not supported by evidence. The Board also held that it was only on false premises that the applicant said his enemies could locate him no matter where he hid in Pakistan;

(g)  the Board held that the applicant’s enemies’ influence was limited to his village and the fact of his trouble free stay in Mirpur and Islamabad suggested that the threat from his enemies was localized;

(h)  the Board did not accept that the applicant came to Hong Kong to seek protection because he did not come directly, but stayed in Thailand for 2 days before coming, and did not seek protection immediately after arrival in Hong Kong;

(i)  the applicant’s family and his enemies were neighbours all along, residing in the same district.

9.  The Director also considered the applicant’s allegations that his enemies were still looking for him and threatening to kill him, and had used physical violence against his family members on at least 3 occasions. In addition, the applicant alleged that one of his brothers was detained and tortured by police, due to the wealth and power of his enemies.

10.  In support of these allegations, the applicant provided 2 First Information Reports from the police dated 18 February and 2 September 2019, as well as an affidavit from one of his brothers dated 1 October 2019, detailing incidents in which his brothers were attacked by unknown assailants.  He also provided an affidavit from one of his brothers dated 22 November 2019 relating to that brother’s detention and torture by police.

11.  The Director noted that the pressure put on the applicant’s family by his enemies, was a matter already considered in the applicant’s previous claim.  The Director concluded that even if there has been increased pressure exerted on the applicant’s family by his enemies, that does not amount to a significant change of circumstances to warrant the applicant making a subsequent claim.

Decision of the court below

12.  On 3 March 2020, the applicant sought leave from the court to apply for judicial review against the Director’s decision dated 29 January 2020.  In his supporting affirmation, the applicant stated a number of grounds for judicial review, which the Judge summarized at [16] of the Form CALL-1 ([2021] HKCFI 1098, HCAL 282/2020).

13.  Following consideration of documents only, on 23 April 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [16] – [21] of the Form CALL-1 ([2021] HKCFI 1098, HCAL 282/2020)  as follows:

“16. In support of his application for leave for judicial review of the Director’s Decision, he put forward the following reasons in his affirmation:

(1)  He is a genuine non-refoulement claimant as he faces all the dangerous problems, harassment and torture in his country. He is unable to find any place to stay safely in his country.

(2)  The Director has made a wrong decision without proper inquiry his situation and he invites the Director to go to his country to see for himself.

(3)  He had to run away or he would be killed by his enemies.

17. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.   …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

19. Those grounds in paragraph 15 do not assist him. Those are his opinions without specifics in support of them. It is not necessary for the Director to go to his country to make inquiry into his situation as the Director may rely upon the country of origin information before making his decision, which he did. Even if the additional information is accepted, if the option of internal relocation is open to him, he is not eligible for protection under the relevant statutory provisions and Convention, as held by the Court of Appeal in TK v Michael Jenkins Esq and Director of Immigration[2013] HKC, 526, CA:

“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

20. The Court does not find any error of law or procedural unfairness in the Director’s Decision. The findings of the Director are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to this Court

14.  On 5 May 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he will face hardship if he were to return to his home country, that the Board relied on news sources that are not officially recognized, or are simply hearsay, and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

15.  In his Supplementary Notice of Appeal of 21 July 2021, the applicant did not raise any additional grounds of appeal, but instead merely stated that the Judge’s decision was unfair, that he did not agree with the Judge’s decision and wished to appeal.

16.  The applicant lodged his written submissions on appeal on 25 August 2021. Those submissions mostly consist of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.

17.  At paragraph 2(1)  of his submissions, the applicant stated that the Board erred in approaching the matter by simply trying to see whether it could find fault with the Director’s decision.  The applicant argued that the Board failed to scrutinize the Director and that it is a general practice of the Board to not question or find fault with the Director’s decision.  At paragraph 2(2)  of his submissions, the applicant argued that the Board should have but did not consider country conditions.

18.  The applicant did not provide any details or particulars in support of his grounds of appeal or as to any specific errors by the Director or the Judge.

19.  At the hearing, the applicant stated that the problem he had in Pakistan is getting worse, because the persons were still looking for him and disturbing his family.  He said he had provided evidence and proof in the papers already, and requested the Court to look at them again.

Legal principles

20.  In assessing the merit of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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 this Court 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 stringent time limit in Order 53, rule 4(1)  of the Rules of the High Court (Cap 4A).

Discussion

21.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal or as to any specific errors in the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

22.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no grounds that point to any error by the Judge, the appeal should be dismissed.

23.  Moreover, the applicant’s grounds of appeal are not on point or are irrelevant to this appeal, as they are directed toward the Board decision, instead of the Director’s decision dated 29 January 2020 that was subject of the Judge’s decision under appeal.

24.  In the present case, the Director refused the applicant’s request to make a subsequent claim for non-refoulement protection on the basis that that there is no change of circumstances to warrant the applicant making a subsequent claim, in light of the information provided by the applicant with his request and the previous decisions of the Director and the Board.  Such findings are within the province of the Director, and the court will not interfere with such assessments unless they are reversible on public law grounds.  In this case, there are no such valid grounds to do so.

25.  Having considered the materials before us, and taking into account the oral submissions made to us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

26.  For these reasons, this appeal is dismissed.