RE REHMAN DANISH UR alias REHMAN DANISH

CACV 435/2019

[2020] HKCA 365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 435 OF 2019

(ON APPEAL FROM HCAL 1741/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 6 September 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 1 September 2017, as well as the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 10 August 2018.  In the former decision, the Director rejected the applicant’s claim for non-refoulement in Hong Kong; and in the latter decision, the Board upheld the said decision of the Director.

2.  The Applicant indicated on 18 September 2019 that he consented to the appeal being disposed of on paper without an oral hearing by 2 judges.

3.  Notwithstanding so, on 8 October 2019, he lodged an application to fix a date for the hearing.  The Court scheduled the appeal to be heard on 4 February 2020 and notified the applicant on 18 November 2019. At the same time, the applicant was notified of the unless order of 14 November 2019 concerning the requirement to lodge skeleton submissions by 17 December 2019.

4.  Due to the non-compliance with the unless order of 14 November 2019 in terms of lodging skeleton submissions, the hearing date for this appeal (originally listed for 4 February 2020) was vacated and this appeal is processed on the papers based on the materials already lodged.

5.  This is our judgment.

Background

6.  The applicant is a national of Pakistan.  According to him, he left Pakistan for Mainland China on 23 October 2015.  He entered Hong Kong illegally on 26 October 2015, and was arrested by the police the next day.  He raised his claim for non-refoulement protection by way of a written signification dated 29 October 2015.

7.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or even killed by the people of Pakistan Muslim League (Nawaz) (“PMLN”) because of his support to their political rival, Pakistan Tehreek-e-Insaf (“PTI”) during an election. The background facts of this case was succinctly set out by the Judge in [4] of the Form CALL-1 ([2019] HKCFI 2225).  

8.  The Director assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4]. By a notice of decision dated 1 September 2017, the Director determined the claim against him.

9.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 31 May 2018.  At the hearing, he elected not to add anything other than confirming the truth and correctness of the evidences in the hearing bundle. By a decision dated 10 August 2018[5], the Board dismissed the applicant’s appeal/petition.  The Board found that the applicant was only one out of many canvassers on the street and no benefit would be derived politically by killing him[6]. Further, it found as a fact that PMLN had no specific intention and had no good reason to kill the applicant[7].  It also found that state protection was available[8], and internal relocation was a viable option[9]. As a result, it was concluded that the applicant’s life would not be specifically threatened and that his fear of harm was not well-founded[10].

The Judge’s decision

10.  On 24 August 2018, the applicant applied to the court for leave to apply for judicial review.  As mentioned earlier, the intended judicial review was against both decisions of the Director and the Board.  The applicant set out his grounds for judicial review in his supporting affirmation filed on the same day.  The Judge summarized them into 4 grounds: see [11] of the Form CALL-1.  In gist, ground 1 concerned the lack of legal and language assistance; grounds 2 and 4 criticised the Director’s approach in assessing his claim and the Director’s handling of the country of origin information; and ground 3 complained about the lack of translation of the hearing bundle.

11.  Upon the request of the applicant, an oral hearing was held on 1 March 2019.  The applicant attended the hearing.

12.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  Following the legal principle set out in Re Moshsin Ali [2018] HKCA 549, the Judge held that the decision of the Director was not susceptible to judicial review after the Board had reached a decision and that the applicant’s application for leave to apply for judicial review against that decision failed in limine. 

13.  His reasons in refusing leave for judicial review against the Board’s decision were set out in [14] – [19] of the Form CALL-1 as follows:

“ 14. The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. Their respective Decisions had been explained to him by his lawyer and his friend respectively. He considered that he had had a fair hearing before the Board.

15. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.

16. The Court of Appeal in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings.

17. In Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 §42, the Court of Appeal held that the finding of fact of the Board is final.

18. Grounds (1) to (3) fail. Ground (4) is only his opinion without any evidence in support of it. It fails too.

19. The applicant fails to show that he has any reasonable chance of success in his proposed judicial review.”

The appeal

14.  On 18 September 2019, the applicant filed a notice of appeal.  In it, the applicant set out his ground of appeal as follows:

“ … the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my claim.” (sic)

15.  Notwithstanding that he was directed to do so, the applicant did not lodge any written submissions in support of this appeal.

General principles

16.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeals in non-refoulement cases:

(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 the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, 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.

(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 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.

(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 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).   

Discussion

17.  In the present case, the Board rejected the applicant’s claim based on its assessment of the risk of harm and its findings regarding the availability of state protection and the viability of internal relocation.  As explained above, these are within the province of the Board as the primary decision maker.  The court will not interfere with the same unless they are reversible on public law grounds. 

18.  Recently, in Re Aioub Ali [2019] HKCA 1329 at [15] – [19], this Court (differently constituted) explained why it would have been wrong if the Judge proceeded on the basis that the Board’s findings of facts were not reviewable at all.   

19.  However, in the affirmation in support of the application for judicial review the applicant only raised unparticularised grounds in challenging the decision of the Director.  He did not challenge the decision of the Board.  The Judge rightly held that in view of the appeal to the Board and its decision, the court would not entertain challenge of the decision of the Director which had been overtaken by the decision of the Board.     

20.  In the circumstances, Re Aioub Ali, supra, does not assist the applicant.

21.  The ground set out in the notice of appeal is not a proper ground of appeal.  It has not identified any error on the part of the Judge.

22.  In our view, the applicant has already had ample opportunity to present his case to various decision makers (including the Director, the Board).  We agree with the Judge that there is no valid basis for questioning the fairness of the proceedings before the Board.

23.  In our judgment, the applicant fails to pinpoint any error on the part of the Judge that merits our reversal of the decision below.  We agree with the Judge that leave to apply for judicial review should be refused.

24.  For these reasons, we dismiss the appeal.