RE HAQ SHAMS UL

CACV 581/2019

[2020] HKCA 751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 581 OF 2019

(ON APPEAL FROM HCAL NO. 1266 OF 2018)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL‑1 dated 11 December 2019 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 2551.

2.  The intended judicial review is against the decisions of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 1 June 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 9 December 2016 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  By a letter dated 16 December 2019, the applicant gave consent to the appeal to be disposed on paper by this Court without an oral hearing. This is our judgment.

Background

4.  The applicant is a national of Pakistan.  He last entered Hong Kong illegally in June 2015 and surrendered to the Immigration Department.  He lodged his non-refoulement claim on 18 May 2016.

5.  The details of the applicant’s claim and his personal background were set out in paragraphs 8 - 10 of the Director’s Decision.

6.  Briefly stated, the applicant claimed that he would be harmed or killed by those men who were cheated by his elder brother if he returned to his home country.  The applicant first came to Hong Kong as a visitor in 2002 and raised a torture claim[1] based on the fear that he would be killed due to religious conflict.  While the applicant was in Hong Kong, in 2003, his elder brother used his name to design a fraudulent scheme.  When he went back to Pakistan after the dismissal of his torture claim in 2012, the victims of the fraudulent scheme chased him for money.  They threatened to harm him and his family if he refused to repay the money.  Out of fear, he left Pakistan again.

The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk^[2], the persecution risk^[3], the torture risk^[4] and the BOR2 risk^[5] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim (paragraphs 17 - 37 of the Director’s Decision).

8.  The applicant appealed the Director’s Decision to the Board.  A hearing took place on 10 April 2018.  The applicant refused to give evidence before the Board and asked the appeal to be determined on papers. After considering the documents, the Board dismissed the appeal.  The Board found that it was unable to resolve the inconsistencies in the applicant’s version of events since he refused to give evidence.  Thus, no credence could be attached to his claim (paragraphs 14 - 21 of the Board’s Decision).  In any event, internal relocation was available to the applicant (paragraphs 22 - 29 of the Board’s Decision).

The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 4 July 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision. The grounds of review stated in his supporting affirmation were summarized by the Deputy Judge at paragraph 10 of the Deputy Judge’s Decision:

“10. On 4 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) lack of legal representation in his appeal before the Board;

(2) lack of language assistance for not providing him with translation of the documents in his hearing bundle or with an interpreter to assist in his appeal before the Board;

(3) failure on the part of the Director to properly balance the use of COI in assessing his claim; and

(4) failure on the part of the adjudicator to translate and explain to him the Board’s decision which is in English that he cannot understand.”

10.  The Deputy Judge heard the applicant’s leave application on 16 August 2019.  During the hearing, an interpreter was arranged for the applicant.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 11 - 19 of the Deputy Judge’s Decision:

“11. For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

12. The Applicant already had the benefit of legal representation in presenting his case to the Director, but declined to give evidence or answer any questions from the adjudicator during his appeal hearing before the Board despite being invited and was advised to do so. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13. As for his complaint under Ground (2) of not being provided with a translation of the documents in the hearing bundle, most of which he should be well familiar with such as his NCF which was completed on his own instructions to his lawyer from DLS, while the others such as the Director’s decision had earlier already been provided to him when he was still legally represented, and that he was assisted by an interpreter throughout his oral hearing before the Board but during which he never raised any such issue to the adjudicator. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

14. Regarding his complaint in Ground (3) over the Director’s use of the COI, it was just a broad and vague assertion without any particulars or specifics or elaboration by the Applicant that I do not find any basis or merit in this complaint of his, and in the absence of any factual error in those COI being clearly and properly identified by him, I do not find this ground reasonably arguable either.

15. As for Ground (4) in which he complains of not being provided with any translation of the Board’s decision, it cannot per se be considered as a proper ground for his challenge,nor is it reasonably arguable for his intended application.

16. As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their 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 being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or 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; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17. The fact is that it has been established by both the Director and the Board in their decisions 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.

18. 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.

19. 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.”

Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 16 December 2019 to appeal the Deputy Judge’s Decision.  He simply stated that he was dissatisfied with the Board’s Decision because it disregarded his dangerous situation back in his home country.  Other than that, he did not provide any grounds of appeal against the Deputy Judge’s Decision.

12.  Pursuant to the directions of Registrar of Civil Appeals dated 18 December 2019, the applicant filed his skeleton submissions on 2 January 2020.  In that, he argued that the Board disregarded the real situation in his home country[6].  He also argued that he was an uneducated foreigner and thus his delay in lodging the non-refoulement claim was understandable.  The Board was therefore biased in questioning his intention of seeking the non-refoulement protection[7].

Discussion

13.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

14.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

15.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  Third, 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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

17.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

18.  Bearing these principles in mind, we now turn to consider the merits of this appeal.

19.  As mentioned, the applicant failed to identify any errors committed by the Deputy Judge in his reasons.  There is no viable ground for this Court to intervene the Deputy Judge’s Decision.  On this basis alone, we will dismiss this appeal.

20.  In any event, it is clear in the Board’s Decision that the Board dismissed the applicant’s appeal against the Director’s Decision because it attached no credence to the applicant’s claim and that in any event, internal allocation was available to the applicant.  None of the applicant’s complaints in his written submissions had addressed why the Board was wrong in so finding.  After reviewing the Board’s Decision and the Deputy Judge’s Decision, we agree with the Deputy Judge that there is no prospect of success in the applicant’s intended judicial review against the Board’s Decision.

21.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.