MEHBOOB QAISER v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 584 /2019

[2020] HKCA 440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 584 OF 2019

(ON APPEAL FROM HCAL NO 891 OF 2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 6 December 2019[1] refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. The appeal is dealt with on paper without a hearing due to the non-compliance with an order for the lodging of a skeleton argument as mentioned below.

2.  The applicant is a national of Pakistan of 38 years old.  He entered Hong Kong illegally on 16 February 2016 and surrendered to the Immigration Department on 2 March 2016.  He raised a non-refoulement claim in August 2016 on the basis that he will be harmed or killed by some Shia Muslims if he returns to Pakistan.

The Director’s decision

3.  By a Notice of Decision dated 11 October 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director held that the low intensity and low frequency of the alleged ill-treatments in the past is indicative of low future risk of harm upon the applicant’s return to Pakistan.  The problem is private in nature and no official element was involved.  The Director also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected by the Director. 

The Board’s decision

5.  The applicant attended the hearing of the appeal against the Director’s decision on 16 March 2018.  The Board found that there is no substantial ground to believe that the applicant will be subjected to ill‑treatment or torture if he were to return to Pakistan.  The applicant has failed to show that there exists a reasonable degree of likelihood that his fear will materialize.  There is no evidence to show that he has committed any offence for which he would face capital punishment.  The Board assessed that the problem he faced is a private matter and there is no evidence that the Pakistani Government had any involvement in the dispute.  The Board also considered that state protection is available to the applicant.  Therefore, the Board rejected the appeal on 8 May 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 21 May 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. He put forward these grounds for his intended challenge:

(1)     He was not given legal representation for his appeal before the Board.

(2)     He was not provided with language assistance for his claim and appeal including interpreting and translating to him the Board’s decision.

(3)     The Director and the Board failed to consider and assess his claim carefully and thoroughly.

(4)     The Director failed to properly consider the relevant Country of Origin Information (“COI”) materials in order to reach a balanced view of state protection in assessing the applicant’s claim.

The judge’s decision

7.  The judge heard the leave application on 29 May 2019.

8.  For ground (1), the judge observed that the applicant had the benefit of legal representation in presenting his case to the Director, he 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.  Neither the high standard of fairness nor the nature of the non‑refoulement protection claim would entail that the applicant be given an absolute right to free legal representation at all stages of the proceedings[6].

9.  For the complaint in ground (2) of not being provided with language assistance, the judge noted that the applicant was assisted by an interpreter at the hearing before the Board, during which he never raised any issue with language problem.

10.  In respect of ground (3), the applicant did not provide particulars to substantiate in what way his claim had not been carefully or thoroughly considered by the Director or the Board.

11.  Likewise, the complaint in ground (4) that the Director failed to properly consider relevant COI materials is unsubstantiated. Having examined the COI materials referred to in the Director’s decision and the Board’s decision, the judge found that the primary decision makers did take a balanced view in their assessment of state protection in Pakistan.

12.  The judge held that the intended judicial review does not have any prospect of success for reasons stated in paragraphs 12 to 19 of his decision and dismissed the leave application on 6 December 2019.

The grounds of appeal

13.  The applicant filed a Notice of Appeal against the decision of the judge on 17 December 2019.  His grounds of appeal may be summarized as follows[7]:

(1)     It is unfair that the judge never heard the applicant in person;

(2)     There was lack of legal representation for the assessment of his BOR 2 risk.

(3)     He did not have sufficient language assistance for the BOR 2 risk assessment. 

(4)     The further decision was determined by the Director without ensuring that the applicant was aware of his rights and the definitions behind BOR 2.

(5)     He has no understanding of the process or the reason for rejecting his claim.  The determination of the Board has not been read to him by an interpreter.

(6)     All acts of the authorities have been highly discriminatory and unfair.

Non-compliance with order for lodging of skeleton argument

14.  Directions were given by the Registrar of Civil Appeals on 7 January 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

15.  The appeal was scheduled to be heard on 27 May 2020[8].  On 17 April 2020, Kwan VP extended the deadline for the applicant to comply with the Registrar’s directions to lodge a skeleton argument to 8 May 2020.

16.  The applicant failed to lodge a skeleton argument on or before 8 May 2020.  As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 15 May 2020, the court informed the applicant that the hearing date of 27 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

17.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

18.  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.

Analysis and disposition

19.  The judge has explained in detail his reasoning for rejecting the leave application and his decision is well founded.  The applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  In particular, contrary to the applicant’s allegation in ground (1) of the Notice of Appeal, he had in fact appeared before the judge and was given the opportunity to make submissions at the hearing on 29 May 2019.  He has also failed to identify any discriminatory and/or unfair act of the judge or the authorities as alleged in ground (6).

20.  The grounds of appeal do not constitute viable grounds to reverse the judge’s decision.

21.  There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.