RE MAZHAR SHAREEF BUTT

CACV 434/2020

[2021] HKCA 270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 434 OF 2020

(ON APPEAL FROM HCAL 2126/2018)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 24 August 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 13 September 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 18 January 2017 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong under various aliases and was removed or deported on three occasions (12 April 1995, 20 November 1996 and 28 June 2002) (§12 of Director’s Decision).  He last entered Hong Kong on 26 March 2003.  He overstayed and was arrested by the police on 24 February 2010.  He lodged a torture claim which was dismissed by the Director on 27 September 2010 and his appeal against that decision was dismissed by the Board on 4 November 2010.  He lodged a non-refoulement claim on 24 March 2014.

3.  The applicant claimed that his parents arranged a marriage between him and the daughter of a local police inspector.  When the applicant refused to marry the woman because he already has a son with a Filipino woman in Hong Kong, the police inspector threatened to kill the applicant.  The details of the applicant’s claim have been summarised by the judge at [2] to [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 18 January 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2] and the persecution risk^[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 28 June 2018, the Board dismissed the appeal on 13 September 2018 (“Board’s Decision”).

6.  At [40] and [46] of the Board’s Decision, the Board found that the applicant fabricated his claim for protection in order to stay in Hong Kong with his son and his son’s mother and that he was not truthful in his belief that he will be harmed upon his return.  The Board held at [46], [50] and [54] that the applicant is unlikely to suffer from any of the proscribed harms upon his return.

The judge’s decision

7.  The applicant filed a Form 86 on 5 October 2018 which contained no ground for seeking relief.

8.  In his affirmation dated 5 October 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [8] of the CALL-1 Form:

(1) procedural impropriety in the Board’s failure to conduct sufficient inquiry into the relevant COI;

(2) procedural impropriety/irrationality in the Board’s failure to provide reasons for its assessment of BOR 3 risk or to provide sufficient basis for its conclusion regarding BOR 3 risk;

(3) error/misdirection in law in the Board’s failure to take into account the considerations of psychological strain and threats to kill the Applicant personally and his family members;

(4) error/misdirection in law in the Board’s failure to apply or properly apply the UN committee general comment concerning the obligation of a signatory state to adopt reforms or means of redress aimed at ensuring the safety of its citizens;

(5) procedural impropriety in the Board’s failure to consider the concept of extended state acquiescence; and

(6) error/misdirection in law in the Board’s failure to consider the Applicant’s fear that he will face the risk upon refoulement and instead only focused that his claim was personal and private problem and that he had not suffered any physical harm from his enemies because he was in Hong Kong despite the fact that his family members had suffered while he was mentally stressed from receiving death threats.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [14] of the CALL-1 Form:

“9. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of extended state acquiescence to his case, or why it was necessary or relevant to consider his psychological strains when his claim was rejected essentially on his credibility. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

11. In the Applicant’s case, the Board rejected his claimed fear of harm arose from his failure to go through the alleged pre-arranged marriage upon his return to Pakistan essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 32 – 41 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

12. 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.

13. 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.

14. 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

10.  In the Notice of Appeal dated 4 September 2020, the applicant contended that:

“1. Failure to consider my fear that I would face genuine risk if I return to my country upon refoulement.

2. Failure to consider the country of origin condition (COI) into the country of origin.

3. Failure to consider my claim under BOR2 risk that I would not safe in my country.”

11.  In his skeleton submissions dated 29 January 2021, the applicant submitted that:

(1) the Board and the Director failed to comply with their duty to make sufficient inquiries into the COI information and adopted a passive approach in contravention of the high standards of fairness;

(2) failure to take into account relevant consideration/take into account irrelevant consideration, particularly:

(a) the real risk he would face from his enemies upon refoulement to Pakistan;

(b) because of the difficulties that his enemies will inflict on him, the applicant is under severe mental distress.

(3) his claim is not a personal or private dispute.  The Board and the Director failed to assess his fear of being harmed by his enemies upon his return.

12.  The applicant agreed by a letter of 4 September 2020 that the appeal could be heard by two judges.  We heard the appeal on 1 March 2021.  At the hearing, the applicant stated that his wife and son had recently been granted permission to stay in Hong Kong and had obtained Hong Kong identity cards, and that he wished additionally to seek permission to stay in Hong Kong on the basis of his relationship with them.

Discussion

13.  In relation to the matters mentioned in the written submission, these all complain of errors on the part of the Director and the Board, but do not identify any error on the part of the judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

14.  As for the grounds of appeal in the Notice of Appeal, the applicant did not state whether they are directed against the decisions of the Board, the Director or the judge.  To the extent that they are directed against the decisions of the Board or the Director, they would fail for the reasons stated above.  Even if we were to accept that they are directed towards alleged errors in the judge’s decision, those grounds lacked particulars. Further, they are not good grounds of appeal.  As to the first ground, as this court has often stated, the primary fact finders and decision makers are the Director and the Board, and the role of the judge hearing an application for leave to bring judicial review proceedings is not to treat the application as an appeal against the decision of the Board, but to consider whether there were any public law errors on the Board’s part.  As the judge pointed out, no such errors could be identified. The second ground was dealt with by the judge in paragraph 9 of the CALL-1 Form, and we see no error in his decision in this respect.  Finally, the complaint regarding failure to deal with the BOR 2 risk is simply erroneous as a matter of fact, as this was dealt with by the Board, in respect of whose decision the judge found no public law errors.

15.  As for the applicant’s assertion that it is unsafe for him to return, the Board has dismissed the applicant’s appeal on the ground that he fabricated his claim for protection and that he is not in fact at risk from any of the proscribed harms.  The judge has held that there is no public law error in the Board’s decision and we agree with the judge’s decision.

16.  As to the matters mentioned by the applicant at the hearing, these too do not give rise to a viable ground of appeal.  They are matters arising long after the determination of his claims by the Director and the Board, and as such are not a basis for challenging those determinations.  To the extent that such matters might provide an alternative basis for the applicant to seek to remain in Hong Kong (as to which we express no view), it is for him to make a fresh application to the Director on some other basis than that relied upon for his non-refoulement claims.

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.