ARIF HUSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 447/2020

[2021] HKCA 274

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 447 OF 2020

(ON APPEAL FROM HCAL NO 691 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 31 August 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 13 April 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 12 May 2017 rejecting his non-refoulement claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of Pakistan.  He entered Hong Kong on 27 August 2009 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 29 August 2009. 

4.  The applicant’s claim was based on his fear of being harmed or killed by a distant relative named Fiaz out of a dispute with him regarding the distribution of profits from the sale of a piece of land.  Fiaz was a supporter of the local political party Pakistan Muslim League N (“PMLN”).  Fiaz was close to a person named Farooq who was a core member of PMLN.  The details of the applicant’s claim have been summarised by the Judge at [2] to [4] of the Form CALL-1[1].

5.  By his decision dated 12 May 2017 (“the Director’s  Decision”), the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds.

6.  By its decision dated 13 April 2018 (“the Board’s Decision”), the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that the applicant’s case was not credible.  The Board was also satisfied that internal relocation would be viable. 

Application for leave to start judicial review

7.  On 20 April 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision which contained no ground for seeking the relief. 

8.  In his affirmation in support of the leave application, as summarized by the Judge at [9] of the Form CALL-1, the applicant deposed that:

(1)  The police in Pakistan is inefficient and that state protection is insufficient to protect him upon his return to Pakistan; and

(2)  the COI relied on by the Director or the Board do not actually reflect the real situation for normal citizens in Pakistan resulting in their failure to properly understand how corrupt and ineffective the police is in Pakistan in assessing the risk to the applicant’s life in his home country.

The Judge’s Decision

9.  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 [10] to [15] of the Form CALL-1:

“10. These are however 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 Board had erred in their decisions, or in what way is state protection inefficient in Pakistan or which COI fail to actually reflect the real situation in Pakistan, or how did the Director or the Board fail to properly understand the efficiency of the police in Pakistan in their assessment of the risk to the Applicant upon his return to Pakistan. None of these assertions were properly elaborated or presented with any particulars or specifics by the Applicant. As such I do not find either grounds reasonably arguable for his intended challenge.

11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 50 – 71 of its decision with the benefit of hearing him in his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.

14. In the premises and having considered 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 claim.

15. 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.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 8 September 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds (sic):

“I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.”

Skeleton Submissions

11.  In his skeleton submissions dated 26 January 2021, the applicant gave a summary of the facts giving rise to his claim and submitted that:

(1)  The applicant is not satisfied with all of the decisions up until the date of the written submission;

(2)  The decisions are not transparent and many things related to his case were ignored;

(3)  The situation in India is different from what the decision makers thought and it will be hard for the applicant to return and face his enemies

(4)  The applicant wishes to stay in Hong Kong until his problems in Pakistan are resolved;

(5)  Torture and deaths are common in police custody because the police are corrupt;

(6)  There are many examples related to his case in YouTube and on the internet;

(7)  Even if the applicant files a police report it will not be useful as the police is connected to powerful people;

(8)  The Board ignored many things related to his case.  The actual situation is very different from what the Board thought;

(9)  The applicant has suffered a lot.  The applicant wants some time to resolve his problems then he will go back; and

(10)  If the applicant becomes a witness against the people in power, he will be harmed because the authorities are corrupt.

Legal Principles

12.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

13.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

14.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here. 

15.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

Appeal Hearing

16.  We heard the appeal on 1 March 2021. At the hearing, the applicant said his family members have been threatened by the people of PMLN since after the last election in 2018.  They were angry at his family as they did not support PMLN in the election.

17.  The applicant said he did not tell the Judge the above as he was not given an oral hearing.  However, the applicant admitted that he received a letter from the court asking him if he required an oral hearing but he replied to the court that he did not.  

Discussion

18.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

19.  In the Notice of Appeal and the written submission, the applicant advanced a number of new grounds (such as the lack of transparency and the allegation that he will be harmed if he becomes a witness in Pakistan), which were never given as grounds for judicial review.  It is not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings.

20.  Regarding what he said at the hearing, if there are changes in the circumstances or new information that are material to his case for non-refoulement, the applicant may consider providing the information or new evidence to the Director, who is the primary decision maker, pursuant to section 37ZO(2) of the Immigration Ordinance, Cap. 115.

21.  As for the complaint that he was not given an oral hearing before the Judge, it is not open to him to now raise such complaint as he has declined an oral hearing when he was asked if he required one. 

22.  Further, all of the grounds of appeal lacked particulars and are therefore not reasonably arguable.  The applicant also did not identify the material on the internet that was said to be relevant to his case and in any event there was no application for leave to adduce it.

23.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

24.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  Nor do we see any merit in the criticism of lack of transparency.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no basis to disturb the Judge’s decision. 

25.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.