RE AMIN MUHAMMAD

CACV 439/2020

[2021] HKCA 416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 439 OF 2020

(ON APPEAL FROM HCAL 2156/2018)

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J U D G M E N T

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

Introduction

1.  On 24 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 3 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 19 September 2017 rejecting the applicant’s non-refoulement claim. 

2.  On 7 September 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 17 October 2015.  He was arrested by the police on 27 October 2015 and he lodged a non-refoulement claim on 29 October 2015. 

4.  The applicant’s claim was based on the fears that, if he returned to Pakistan, he would be harmed or even killed by a Muslim extremist Shia cleric named Tufail or Tufail’s followers for the reason that he had protested against them.  He might also be harmed by those human traffickers who had trafficked him to Hong Kong to work for them as a slave.  The factual background was succinctly summarized by the Judge at [1] – [3] of the Form CALL-1 ([2020] HKCFI 2062). 

5.  By notice of decision dated 19 September 2017, the Director, having assessed the applicant’s claim on all applicable grounds, rejected his claim.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  In addition, the Director also assessed and rejected the applicant’s claim under the prohibition of slavery, servitude and forced or compulsory labour in Article 4 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“BOR 4 risk”). 

7.  The applicant appealed to the Board against the Director’s decision.  A hearing was held on 21 June 2018, during which the applicant was interviewed by the Board.  The Board considered that the applicant’s evidence was vague, inconsistent and implausible.  The Board thus found that the applicant’s claims were not credible and that there was no real risk of harm in the event of refoulement.  As a result, the Board dismissed the applicant’s appeal on 3 September 2018 on all the applicable grounds as well as on BOR 4 risk. 

Decision of the court below

8.  On 8 October 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  No ground for review was set out.  In his affirmation of the same date filed in support, he advanced a number of grounds for relief which were summarized by the Judge at [9] of his decision. 

9.  A hearing was held on 10 June 2020 at which the applicant appeared in person.  On 24 August 2020, the Judge refused to grant leave to apply for judicial review.  The grounds of relief of the applicant as well as the Judge’s reasons for the refusal were set out at [9] – [18] of the Form CALL-1 ([2020] HKCFI 2062, HCAL 2156/2018) as follows:

“9.  On 8 October 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 various grounds for his intended challenge which can be summarized as follows:

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

(2)  lack of language assistance to enable him to have a better understanding of the contents of the decision of the Director or of the various documents in the hearing bundle for his appeal before the Board;

(3)  wrongful exercise of case management power by the Director by using a biased formulaic approach in coming to the conclusion that state protection would be available to the Applicant as a result of improper assessment of the relevant COI;

(4)  failure on the part of the Director and the Board to apply high standard of fairness in their consideration of his non-refoulement claim; and

(5)  failure to read or translate the Board’s decision to the Applicant thereby depriving him of the opportunity of knowing the reasons behind the rejection of his claim and to make proper application for judicial review of that decision.

10.  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 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 367, and Re Zafar Muazam [2018] HKCA 176.

11.  The Applicant already had the benefit of legal representation 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 put to him by the adjudicator without difficulty. 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.

12.  As for his complaint under Ground (2) of not being provided with language assistance regarding the Director’s decision and other documents in his hearing bundle for his appeal before the Board, the fact is that he was still represented by DLS when the Director’s decision was delivered, while other documents in his hearing bundle such as his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any such issue, and 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.

13.  Regarding his complaints in Grounds (3) and (4) of wrongful exercise of case management, biased approach and failure to apply high standard fairness in their assessment of his claim by the Director and the Board, they are all vague and bare assertions without any particulars or specifics or elaborations as to why they are considered so. As such I do not find either of them reasonably arguable for his intended challenge.

14.  As for his complaint under Ground (5) that the Board’s decision had not been explained to him to enable him to have a better understanding of the reasons for rejecting his claim, that cannot per se be accepted as a proper or valid ground to challenge the decision, and is also rejected as not reasonably arguable.

15.  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.

16.  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 43 – 62 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing before the Board, 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.

17.  Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, 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.”

Appeal to this Court

10.  On 7 September 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal as set out in the notice are that the gravity of his circumstances had not been weighed or realized by the Board and the Director when considering his non-refoulement claim, and that he should be given an opportunity to plead his case properly. 

11.  Pursuant to the Court’s directions of 26 January 2021, the applicant lodged his written submissions on appeal on 22 February 2021.  Those submissions consist of general statements of the law quoted from decided cases, without identifying how they specifically relate to or apply in this case.  In [5] of his submissions he stated that the Board had acted in a procedurally unfair manner by failing to properly assess his credibility.  He also seemed to suggest that the decision of the Board had been reasonable by quoting the law in this regard without any elaboration. 

12.  The applicant, however, did not provide any details or particulars as to how the Board had failed to properly assess his credibility and how its decision had been unreasonable, let alone particulars in support of his other arguments. 

13.  The applicant does not appear in the appeal hearing and his appeal is determined on strength of his Notice of Appeal and written submissions. 

Legal principles

14.  In assessing the merit of the appeal, we shall 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

15.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any details or particulars as to how the Board had failed to properly assess his credibility and how its decision had been unreasonable and he also has not identified any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. 

16.  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. 

17.  We would only examine the Judge’s decision in light of the grounds advanced by the applicant in determining whether to reverse the decision.  As there appears to be no such grounds that point to any error by the Judge, the appeal should be dismissed. 

18.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection largely due to its adverse findings on the applicant’s credibility.  The Judge examined the finding of facts of the Board and was of the conclusion that it could not be faulted.  As a matter of fact, such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

19.  The applicant has not advanced any valid public law grounds. 

20.  The Judge considered the grounds of the applicant in support of his application in a thorough and detailed manner and his reasons for ruling against the applicant were fully set out in his judgment as quoted above. 

21.  Having considered the materials before 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 reasonable arguable ground to challenge the decision of the Judge. 

22.  For these reasons, this appeal is dismissed.