NAEEM MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 642/2020

[2021] HKCA 956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 642 OF 2020

(ON APPEAL FROM HCAL NO 811 OF 2018)

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BETWEEN

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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 4 December 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 Director of Immigration (“the Director”) dated 6 December 2016 and the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 26 April 2018.

2.  On 15 December 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

3.  On 21 April 2021, the Registrar of Civil Appeals directed the applicant to lodge his skeleton argument not less than 28 days before the hearing of this appeal.  He failed to do so.      

4.  The Registrar further directed that in the event the applicant failed to lodge his skeleton argument, he shall be deemed to waive his right to have an oral hearing of this appeal and to elect to have this appeal disposed of on paper.  As it is appropriate to do so, we proceeded to consider this appeal on paper.

Background

5.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 11 November 2013 and was arrested by the police on 2 December 2013.  He lodged a non-refoulement claim on 7 December 2013 by way of written representation. 

6.  The applicant’s claim was that if he returned to Pakistan he would be harmed or killed by supporters of “PML(N)” as he was a supporter of Pakistan People’s Party (“PPP”).  The factual background was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2020] HKCFI 2599).

7.  By notice of decision dated 6 December 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

8.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 9 April 2018, during which the applicant was interviewed by the Board.  For the reasons set out at [16] to [22] of its decision, the Board found that the applicant’s claim was vague and unsubstantiated.  He claimed to be a supporter of PPP which was opposed to “PML(N)” but he did not even know what the letters “PML(N)” stand for.  Further, the Board found it fatal to his claim that he alleged that his family members were killed in February or March 2013 during the national elections, when the elections did not in fact take place until May 2013.  Moreover, the applicant’s delay in seeking non-refoulement protection until his arrest by the police further damaged his credibility.  For the aforesaid reasons, the Board attached no credence at all to the applicant’s claim.  In any event, internal relocation is a reasonable and viable option.  Thus the Board dismissed the applicant’s appeal on 26 April 2018 on all the applicable grounds.  These are findings of fact which the Board was entitled to make on the evidence. 

Decision of the court below

9.  On 9 May 2018, the applicant sought leave from the court to apply for judicial review against both the decisions of the Director and the Board and advanced the following grounds for his intended challenge (which was summarized by the Judge at [9] of his decision): 

(1) The Director and the Board reached the wrong decisions in assessing his non-refoulement claim which were unreasonable or unfair as they failed to recognize that the applicant may face the danger of extra-judicial killing.

(2) The Board failed to give the applicant sufficient time and chance to arrange relevant evidence for his appeal against the Director’s decision in dismissing his non-refoulement claim.

(3) The applicant is a genuine non-refoulement claimant who faced dangerous problems and torture in his home country which he had no choice but to escape for non-refoulement protection.

10.  Upon consideration of documents only, on 4 December 2020, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [14] of the Form CALL-1 as follows:

“10. These are however just some broad and vague assertions of the Applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator reached their decisions wrong or in what way were they unreasonable or unfair, or what relevancy was extra-judicial killing to his case, or how did the Adjudicator fail to give him sufficient time or opportunity to provide or present his evidence in support of his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge.

11. 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.

12. 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 16 – 21 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.

13. Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. 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

11.  On 15 December 2020, the applicant filed his Notice of Appeal against the Judge’s decision and he advanced the following grounds:

“the grounds of this appeal are that the gravity of my circumstances have noted (sic) been weighed or realized by both putative Respondents while considering my non-refoulement claim. She (sic) should be given an opportunity to plead my case properly.”

12.  On the same day that he filed his Notice of Appeal, the applicant requested the appeal to be heard by 3 judges.

Legal principles

13.  In assessing the merit 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 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.  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 applicant did not in his Notice of Appeal identify any specific errors in the Judge’s decision, or any other specific potential grounds for reversing the Judge’s decision.

15.  Regarding the applicant’s complaint against the Director, the appeal to the Board is by way of re-hearing, so the court is not concerned with the Director’s decision.  As for the complaint against the Board, as mentioned above, he attended the hearing before the Board, at which he had the opportunity to present his case. He did not indicate that he needed an adjournment to adduce evidence, or what that evidence was.  The Board was entitled to reject his case on the facts. Even now, he has not indicated what was the evidence he was not given the opportunity to present.  The applicant’s complaint cannot stand.  

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the applicant’s credibility.  The Board also found that internal relocation was viable.  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. 

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge had reviewed the Director’s and the Board’s decisions with rigorous examination and anxious scrutiny and had applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge was plainly right to refuse leave. 

Order

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