RE ALI IMTIAZ

CACV 288/2022

[2022] HKCA 1834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 288 OF 2022

(ON APPEAL FROM HCAL NO 56 OF 2019)

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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 an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 15 July 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2164).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 4 January 2019 and the decision of the Director of Immigration (“the Director”) dated 24 January 2018 (“the Director’s Decision”), both rejecting the applicant’s non-refoulement claim.

3.  We heard the appeal on 24 November 2022.^[1] After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant is a national of Pakistan.  He surrendered to the Immigration Department on 9 March 2016 and claimed that he sneaked into Hong Kong on 4 March 2016 by boat.  On 29 April 2016, he raised a non-refoulement claim on the basis that he would be harmed or killed by his enemy, Sajid Hussain, and his men if he returned to Pakistan as he refused their request to convert from Sunni Muslim into Shia Muslim.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [5] of the Leave Decision.

5.  By a Notice of Decision dated 24 January 2018, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[2], BOR2 risk[3], BOR3 risk^[4] and persecution risk^[5].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s Decision to the Board on 5 February 2018.  He also attended an oral hearing before the Board on 9 November 2018 and an interpreter qualified in both Punjabi and English languages was present to provide language assistance.  Having assessed the applicant’s evidence, the Board accepted the applicant’s evidence that he had been subjected to threats and ill-treatment by a small group of Shia Muslims in his home district that caused his fear of being harmed or killed by them in his home district, but found that in the absence of any official involvement, state/police protection would be available to the applicant if needed upon his return to Pakistan as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located.  The Board thus considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, dismissed his appeal on 4 January 2019.

The Leave Decision

7.  On 8 January 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  As summarised by the Deputy Judge at [10] of the Leave Decision, the applicant relied on the following grounds for his intended challenge as stated in his supporting affirmation filed on 8 January 2019:

(1)  That no legal representation was provided to him for his appeal to the Board;

(2)  That the Director rejected his claim simply for the sake of rejecting all non-refoulement claims by adopting a very uninformed approach in coming to his conclusion;

(3)  That the Adjudicator failed to properly address those issues set out in the applicant’s appeal to the Board and instead came up with the assessment in the same template basis such as the finding that his claimed fear was not well-founded despite detailed accounts of physical assaults provided by the applicant that state protection would not be available or sufficient;

(4)  That the Board failed to apply high standards of fairness in rejecting the applicant’s claim on credibility despite all the evidence and materials provided by him in support of his claim that the Board’s decision was unfair unreasonable and illogical;

(5)  That the Director had cited various COI which supported the applicant’s claim with regard to state protection but still ruled against his claim by mentioning that the situation in Pakistan had improved without explaining how its balancing exercise was conducted or how did he came to his conclusion that particular COI outweigh the others;

(6)  That the Board’s analysis of the availability of internal relocation was a viable option to the applicant was seriously flawed and irrelevant to his claim by randomly mentioning certain cities and relying only on their population and language used without considering the difficulty that the applicant would have to survive due to his personal situation; and

(7)  That the hearing bundle for his appeal was served on him only shortly before his appeal hearing before the Board without any translation that he was not able to properly prepare for his appeal.

8.  On 13 May 2022, the applicant attended an oral hearing before the Deputy Judge and an interpreter qualified in both Urdu and English was present to provide language assistance.

9.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [11] ‑ [17] of the Leave Decision:

“11. For his complaint under 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 standard 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 from DLS in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions raised of his claim by the Adjudicator without difficulty with the assistance of the interpreter. 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 complaints under those other grounds listed above, they are just vague and bare assertions without any details or particulars or elaboration as to how they apply to his case, or in what way did the Director or the Board fail to apply high standards of fairness or to consider the relevant COI properly or sufficiently in their assessment of his claim, or how did they err in their assessment of the issues of state protection or internal relocation being available to the Applicant in the circumstances of his case when in fact both the Director and the Board had made full and proper assessment and determination that such options are readily available to the Applicant to negate his claimed risk which based on his own case is without any state or official involvement. As such I do not find any of these grounds reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, nor do I find any basis for this intended application.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them 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.

15. Furthermore, the fact is that it has been correctly 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.

16. 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.

17. 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.”

The Appeal

10.  On 27 July 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, the applicant advanced the following grounds:

(1)  That the Court and the authorities did not exercise caution and diligence in handling his case as a self-represented litigant and had been procedurally unfair.  The Deputy Judge failed to acknowledge his language incapability and he was not given legal or language assistance, as such, he was not able to elaborate on any grounds during his application for judicial review or find legal errors in the Board’s Decision.  He was also not able to understand the Leave Decision completely or the legal jargons involved.

(2)  That the Court erred as there was no consideration or discussion of the grounds raised in his supporting affirmation.

(3)  That the Court should have held a hearing so that he might explain errors in the Board’s Decision with the help of an interpreter.  There being no other revenue for a non‑refoulement claimant to seek an appeal against a decision made purely against credibility was procedurally unfair.

(4)  That the Court erred in not making a finding that there was any interpretation service provided to him after the Director’s Decision.

11.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 August 2022, the applicant lodged his written submissions on 12 October 2022.  In those submissions, he contended that the Court had been procedurally unfair.  He claimed that the Board’s Decision should be subjected to review given that “the Director of Immigration has not made a finding that was determined to [his] credibility, on the contrary, the Board has” (sic).  He repeated his complaints as to the lack of language and legal assistance and that even if he could read the Board’s Decision did not mean he could understand it.  He also contended that he should be given 14 days to provide further submissions in person upon having the documents read back to him.

12.  We heard the appeal on 24 November 2022.  An Urdu interpreter was present to provide language assistance.  During the hearing, the applicant confirmed that he had nothing further to add to his written materials.

Discussion

13.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  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 a 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.

15.  In our view, the applicant’s appeal plainly lacks merit and must fail.

16.  At the outset, the applicant’s arguments advanced in the present appeal are mainly the same as his arguments before the Deputy Judge, which had been considered and rejected by the Deputy Judge at [10] ‑ [17] of the Leave Decision.  Whilst the applicant disagreed with the Deputy Judge, he did not identify with specific particulars how the Deputy Judge had erred in his decision.  Accordingly, his arguments are not proper grounds of appeal and on this basis alone, his appeal must fail.

17.  In any event, as correctly noted by the Deputy Judge at [11] ‑ [13] of the Leave Decision, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas[2018] HKCA 15 at [11] and Re Tariq Farhan[2018] HKCA 17 at [11].  The applicant was assisted by interpreters in his proceedings before the Director as well as during the oral hearings before the Board, the Deputy Judge and this Court.  All of the Court documents filed by the applicant in this Court and the Court below were in English which demonstrated that he was proficient in the English language or had access to language assistance.  Accordingly, his complaints in relation to the lack of language assistance fail.

18.  Further, the applicant had free legal assistance in relation to the assessment of his non‑refoulement claim by the Director.  Although he had no legal representation before the Board and the Deputy Judge, the assessment of his non‑refoulement claim by the Board and the consideration of his application for leave to apply for judicial review by the Deputy Judge were thorough and fair. We consider that a high standard of fairness had been achieved in the overall process of the determination of his non-refoulement claim.

19.  Moreover, the Deputy Judge had thoroughly considered the grounds raised in his supporting affirmation filed on 8 January 2019 before rejecting the same and providing detailed reasons for his decision at [11] ‑ [17] of the Leave Decision.  The applicant also had attended the oral hearing on 13 May 2022 before the Deputy Judge and was given the opportunity to make submissions as to his case.  Clearly, the applicant’s complaints that the Deputy Judge did not consider his arguments or that the Deputy Judge did not hold an oral hearing are, as a matter of fact, wrong.

20.  As to the applicant’s contention that the Board’s Decision should be subjected to review as it made a finding on his credibility whilst the Director’s Decision did not, it is clearly misplaced.  At the outset, in coming to its decision, it is open for the Board to make findings as to the applicant’s credibility when assessing his evidence and determining his non-refoulement claim.  The Court will only intervene when the Board, in making its findings, erred under public law principles.  Furthermore, in the present case, the Board did not reject the applicant’s case on the basis of finding his evidence incredible.  On the contrary, the Board accepted his claims about the past events in Pakistan, including that at the time of his departure from his home area in early 2016, he had been subjected to intimidation, harassment, threat and physical assault by a group of Shia Muslims, which caused him to flee from his home area and to leave Pakistan: see [47] of the Board’s Decision.  As noted by the Deputy Judge at [15] of the Leave Decision, the fact is that it has been correctly established by both the Director and the Board in their decisions that given the risk of harm in the applicant’s claim was a localized one and that it was not unreasonable or unsafe for him to relocate to other part of Pakistan, there was simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.  Accordingly, his allegation in relation to the Board’s finding as to his credibility is misplaced and must fail.

21.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.