ZAFAR IQBAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 327/2021

[2022] HKCA 724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 327 OF 2021

(ON APPEAL FROM HCAL NO 2644 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 16 June 2021, DHCJ To (“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 13 November 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 19 January 2018 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 29 June 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.  On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

3.  Pursuant to the directions of Registrar of Civil Appeals of 29 June 2021, the applicant should lodge his written submissions on or before 13 July 2021.  He failed to do so and only lodged the same on 27 July 2021.  He did not provide any reason for the delay.

4.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials.  As such, the applicant’s written submissions will not be considered by this Court.

Background

5.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 4 January 2015 and was arrested by police on the same day.  On 5 January 2015, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or even killed by people from the Raja clan and people from his own Jatt clan as he is the witness of a murder incident.  The factual background of this case was succinctly summarized by the Judge in [6] of the Form CALL-1 ([2021] HKCFI 1699).

6.  By a Notice of Decision dated 19 January 2018, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

7.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 14 September 2018 and by its decision dated 13 November 2018, the Board dismissed the appeal and confirmed the Director’s decisions.  The Board accepted that the applicant had provided an essentially truthful account and was satisfied that he would face a real and substantial risk of harm as both clans had issued threats to him, not to testify, or to testify, respectively.[5] However, the Board did not find the risk falls within any of the applicable grounds. 

8.  On the ground of persecution risk, the Board considered that the risk was not directed at the applicant because of his race, religion, nationality, membership of a particular social group or political opinion but rather because he is a potential witness in a murder case.  Further, relevant Country of origin information (“COI”)  suggested that the applicant may relocate to other large cities in Pakistan, and the applicant did not provide any credible, plausible or reasonable explanation for why his enemies would be able to locate him, given the large geographical area of Pakistan and the huge populations of many major cities (see in particular, paras.37, 40, 50 and 64 of the Board’s decision).  Further the Board found there is reasonable state protection upon his return to Pakistan.  The applicant is therefore not entitled to protection under the persecution ground.[6]

9.  In respect of the torture risk ground, the Board was not satisfied that the harm involved met the definition of torture as it was not inflicted by or at the instigation of any public official or with state consent or acquiescence.  Further, there is reasonable state protection, and internal relocation is a viable and reasonable option to avoid the risk.[7]  For similar reasons, it was not satisfied that there is a real and substantial risk of harm or risk of life under the BOR 3 risk and BOR 2 risk.[8]  For the aforesaid reasons, the non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

10.  On 22 November 2018, the applicant filed his Form 86 for leave to apply for judicial review of the decisions of the Director and the Board.  In his 10-page supporting affirmation, he complained of the lack of legal and language assistance, and the general irrationality and unreasonableness of the findings made by the Director and the Board.  

11.  The applicant attended an oral hearing on 1 June 2021.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [13] – [23] of the JR Decision:

“13. His first complaint is lack of legal and language assistance. He said that he was not given legal assistance in preparation for the appeal before the Board and at the hearing of the appeal. He also complained that the majority of the documents in the appeal bundle were in English and without translation. He said that due to lack of understanding on what will happen in the hearing, he was confused in terms of what was happening.

14. In Re Zafar Muazam[9], Re Zunariyah[10], Re Zahid Abbas[11], Re Tariq Farhan[12], and Re Lopchan Subash[13], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[14] nor the judgment of FB v. Director of Immigration[15] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether he was prejudiced by the lack of legal representation.

16. The Applicant had the benefit of legal representation in presenting his case to the Director. He was not legally represented before the Board. However, all the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. The Applicant suffered no prejudice due to lack of legal assistance in preparing for the appeal and lack of legal representation before the Board.

17. The Applicant had the benefit of the interpretation services of a qualified interpreter in preparing his non-refoulement claim form and at the screening interview and in presenting his case to the Director. He also had the services of a qualified interpreter at the oral hearing before the Board. The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI. He certainly knew what were in the non-refoulement claim form prepared by him and the record of the screening interview which he attended. The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. It is not open to him to complain about procedural unfairness when he did not do the minimum to pursue his interest.

18. The Notice of the Director was issued to him on 19 January 2018. It was not until 14 September 2018 that the oral hearing was held. The Notice is in English and, unfortunately, no translation was provided. He cannot expect these documents to be fully translated for him. He had in between the issue of the Notice and the oral hearing nearly eight months to seek assistance from among his own circle and ethnic community. Indeed, he had access to interpretation services as reflected in his affirmation and Notice of application for leave to apply for judicial review filed in connection with this application which were very well written in English. Also, he could have sought assistance from the interpreter at the oral hearing before the Board.

19. His complaint about lack of translation of the Decision is frivolous. The Decision was made after an oral hearing during which he had the benefit of interpretation services. A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal. He may suffer some inconvenience, but not prejudice, in the preparation of his application for leave to apply for judicial review.

20. The prejudice suffered by the Applicant as result of lack of legal and language assistance is more apparent than real. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. His complaint about lack of legal and language assistance is over-exaggerated.

21. As for his complaint about the COI being not officially recognised and made up of hearsay, it is incorrect. The COI relied on by the Director and the Board are all from credible and official sources, including Country Information and Guidance – Pakistan: Background information, including actors of protection, and internal relocation issued by the United Kingdom on 6 October 2014 and June 2017; Country Reports on Human Rights Practices for 2016 – Pakistan published by the United States Department of State; and The World Factbook – Pakistan, issued by United States Central Intelligence Agency. In fact, the Board relied on the COI in accepting his evidence. Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention his failure to provide any publication contradicting these COI. The weight to be given to conflicting information in the COI is a finding of fact within the province of the Board. The Court considered this ground totally groundless.

22. As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of fact by the Board. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[16].

23. Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision satisfied the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.”

Appeal to this Court

12.  On 29 June 2021, the applicant filed his Notice of Appeal against the Judge’s decision on the following grounds:

“The High Court refused my leave to appeal for judicial review, but I could not find any cause which one show by the High Court for refusal of my leave."

Legal principles

13.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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 on appeal, which operates as a re-hearing, 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.  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

14.  The ground of appeal set out in the Notice of Appeal is a vague and general assertion without particulars or elaboration, and it is not a valid ground of appeal: 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.

15.  Further, the Board dismissed the applicant's appeal for the reasons that on the factual basis of the applicant's claim, it was found that the applicant's claimed fear was caused by the localized threats in relation to a murder case in which no state element was involved, and the applicant may avoid the risk by moving to other parts of Pakistan.  His claim was therefore rejected on all applicable grounds.  The Board was entitled to make the findings it did.

16.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

17.  For the above reasons, this appeal is dismissed.