RE QAISAR BASHIR

CACV 25/2021

[2021] HKCA 1107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2021

(ON APPEAL FROM HCAL 2000 OF 2018)

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge C P Pang (the “Judge”) given on 19 January 2021 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 (the “Board”) dated 19 September 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”) dated 6 September 2017 rejecting the applicant’s non-refoulement claim based on BOR 2 risk.

Background

2.  The applicant is a national of Pakistan.  He was arrested by the police on 18 December 2007 for illegal remaining.  He claimed to have entered Hong Kong on 25 June 2007 illegally.  He lodged a non-refoulement claim on 12 September 2008. 

3.  The applicant’s claim was based on threats from the family of his girlfriend (by the name of Kirin).   The details of the applicant’s claim have been summarised by the Judge at [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 20 April 2015 (the “Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

5.  The applicant appealed to the Board.  After a hearing on 27 November 2015, the Board dismissed the appeal on 10 June 2016 (the “First Board’s Decision”).

6.  The Board held that there was insufficient evidence to establish that the applicant would face any of the proscribed risks of harm under consideration.  The Board was also satisfied at [144] that state protection would be available for the applicant and internal relocation would be viable.

7.  By a Notice of Further Decision dated 6 September 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

8.  The applicant again appealed to the Board.  After a hearing on 12 July 2018, the Board dismissed the appeal on 19 September 2018 (the “Second Board’s Decision”).  At [60] of the Second Board’s Decision, the Board found that there is no evidence to suggest that the applicant would be subject to BOR 2 risk of harm.

The Judge’s decision

9.  The applicant filed a form 86 on 21 September 2018 against the Second Board’s Decision.  He did not state therein any ground for the relief sought.

10.  In his affirmation in support of the leave application filed on 21 September 2018, the applicant did not advance any ground for judicial review.  He simply exhibited some documents and an audio CD.

11.  The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on paper.

12.  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 at [18] to [27] of the CALL-1 Form:

“ 18. The Board did not take issue with the applicant’s asserted primary facts and events. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

19. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

20. The applicant stated no grounds of the judicial review in Form 86. Three pages among the documents attached to his supporting affirmation are in handwritings in a language not known to the court. The applicant has a duty to provide document or translation of it in official language in Chinese or English for the court to understand it. In the absence of translation, the court is unable to know what the applicant wanted to present. The other documents appear to be the documents he submitted to the Board. As explained, the role of the court in a judicial review is not to provide a further avenue of appeal and to consider the evidence afresh. And having gone through the documents, I fail to see how the documents can assist the applicant. The audio CD has no transcript and the court also fails to understand how it can assist the applicant’s case.

21. Given the applicant’s perceived risk is localised in his home province and the Board’s findings of availability of state protection and viability of local relocation, the applicant’s alleged fear of being harmed by Kirin’s family cannot be substantiated.

22. In respect of the claim of violation of his absolute and non-derogable right to life under BOR 2 because of the possibility that he would be sentenced to death penalty, the applicant needs to adduce evidence to establish a real risk that he will be arbitrarily deprived of his life. There is no evidence that the Pakistani police will arrest and lay a false charge against the applicant for raping Kirin or they will act improperly. In his own case, Kirin was a consenting party and she is dead already. On such evidence, it is difficult to understand why he could be falsely prosecuted. Even if he is prosecuted, there is no evidence that he will not receive a fair trial in the legal system of Pakistan. It seems very unlikely that he will be convicted of the rape charge. Moreover, according to the COI material produced by the applicant, though the crime of rape is punishable by death, it is not a mandatory sentence. On the evidence and facts of the case, there cannot be any substantial grounds for believing that the applicant would face a real risk of being subjected to treatment contrary to BOR 2. I agree with the Board that there is no evidence that there is a personal and real risk of the applicant being subjected to a BOR 2 risk on his return to Pakistan.

23. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

24. The evidence in the present case can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

25. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

26. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

27. Accordingly, leave to apply for judicial review is refused.”

Grounds for appeal

13.  In the Notice of Appeal filed on 26 January 2021, the applicant stated that:

“ The High Court order is not correct, I should get leave.

The High Court Judge did not find any error and the Adjudicator did not find any problem.  So the judgment is not correct.”

14.  On 22 April 2021, the applicant filed a “Supplemental Notice of Appeal”.  In that document, the applicant claims in general terms that his case has been considered hurriedly and carelessly.  He complains that the Judge did not listen to the audio CD exhibited to his affirmation, which is said to “have [a lot] of mistake[s] from Immigration interpreter”.  He claims that his life was not safe in Pakistan, alleging that “Encounter Killings by police was so high in my country”.  He claims that “one police officer told me already before I was left the country, they said, if you come back I will kill you and your family”.  He also complained that the Director, the “first appeal judge” and the Judge did not consider his case and they did not “write any [reason]” for dismissing his case.

15.  The applicant filed a written submission on 25 June 2021 where he summarized the events giving rise to his claim and reiterated the matters raised in the notices of appeal.  He claims that the COI report is fake.  He says that “my main question is not the [proceeding].  [Proceeding] was good.  But both of the two authorities did not reach the merit.  My problem is real.  If I return I will be killed even after 100 years”.

16.  The applicant agreed by a letter of 26 January 2021 that the appeal could be heard by two judges.  We heard the appeal on 26 July 2021.

17.  During the hearing, the applicant made some oral submissions.  He urged this Court to consider his case carefully.  He referred to the audio CD.  He claimed it contained a lot of mistakes.  He confirmed upon invitation for clarifications from this Court that it contains the record of his interview with the Immigration Department, though he could not recall the date.  He confirmed further that the interview was not completed due to his indisposition, that he did not attend any further interview, but he authorised his legal representatives to communicate with the Immigration Department.

Discussion

18.  In the court below, the applicant failed to advance any ground for the relief sought.

19.  The applicant exhibited 590 pages of documents.  He failed to explain their relevance, what ground they support, or how they would assist his application.

20.  The applicant also exhibited an audio CD.  He did not explain what were in it.  He failed to explain the relevance of its contents, or what ground they support.  He claims in the Supplemental Notice of Appeal that it has “a lot of mistake from Immigration interpreter”, but fails to identify what those alleged mistakes are. 

21.  This Court has nonetheless checked the nature of the contents of the audio CD:

(1) The audio CD contains 3 audio files.  Each file records a session of the interview the applicant attended on 22 October 2014 with the Removement Assessment Section of the Immigration Department;

(2) The applicant was legally represented during that interview;

(3) At the beginning of the first session, the applicant was asked whether he was fit, well and content to be interviewed. His answer was that he would try;

(4) At the beginning of the third session, the applicant said that he was no longer fit to continue with the interview;

(5) The third session was then utilized for the purpose of reading back to the applicant the record of the two earlier sessions of interview.  Towards the end, the applicant was afforded the opportunity to make any addition, deletion or amendment to the record.  He did make some suggestions.  After those suggestions, the applicant was asked again as to whether he had any further addition, deletion or amendment.  He answered no.

22.  According to a letter dated 23 October 2014 from the Immigration Department to the applicant (which is amongst the 590 pages of documents), the interview on 22 October 2014 in fact “was not successfully completed because of [the applicant’s] health condition”. This is confirmed by the recording of the third session.  As recorded above, the applicant said in the course of the present hearing that though he did not attend further interviews, he authorized his legal representatives to communicate with the Immigration Department.

23.  The results therefore are these.  The applicant has been provided with the opportunity to make addition, deletion and amendment to the records.  He did do so.  In the end, he confirmed that he had no other to make.  That interview was in any event not the only chance for the applicant to explain his case.  It had not been completed due to his indisposition. While he did not attend any further interview, he authorized his legal representatives to communicate with the Immigration Department.

24.  The contents of the audio CD do not assist the applicant’s case at all.

25.  The complaint based on the contents of the audio CD has no merits.

26.  As mentioned above, the applicant failed to identify any ground for judicial review in the court below.  Despite that, the Judge nonetheless examined the decisions of the Director and the Board with rigorous examination and anxious scrutiny in [16]–[27] of CALL-1 Form.  The Judge has given adequate reasons for dismissing the application.  The complaint about the lack of reasons given by the Judge is entirely without merit.

27.  As for the rest of the grounds of appeal, they concern alleged errors on the part of the Director or the Board but not the Judge. They are not valid grounds of appeal.

28.  In his written submissions, the applicant accepts that there were no problems with the proceedings, but that “both of the two authorities did not reach the merit”.  As the Judge has correctly pointed out, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  An application for judicial review is not a second appeal.  The court will not interfere with their decisions by way of judicial review unless there is a public law ground for the court to do so.

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