RE NAVEED MUHAMMAD

CACV 160/2019

[2019] HKCA 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 160 OF 2019

(ON APPEAL FROM HCAL NO. 456 of 2017)

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JUDGMENT

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Hon Andrew Chan J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 22 March 2019 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Pakistan.  According to him, he departed Pakistan for the mainland China (via Thailand) on 22 November 2013 and entered Hong Kong illegally on 24 December 2013.  He was arrested by the police on 20 January 2014.  He lodged a claim for non-refoulement protection on 25 January 2014.

3.  The applicant’s claim was based on the fear that, if refouled, he would be subjected to ill-treatment, or even be killed, by his great paternal uncle and his five cousins because of a land dispute between them.   The background facts of this case were summarized by the judge in [2] – [7] of the Form CALL-1 ([2019] HKCFI 776).

4.  By two notices of decision dated 15 April 2016 and 12 June 2017, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds and determined the claim against the applicant.  The former covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]; and the latter the BOR 2 risk^[4].

5.  The applicant lodged an appeal / petition to the Torture Claims Appeal Board / an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 30 June 2017, the Board decided the appeal / petition against the applicant on 14 July 2017.  In its decision, the Board noted a number of discrepancies among the applicant’s claim form, his submission, and his evidence given at the hearing.  The Board considered that such discrepancies undermined the reliability of the applicant’s assertion.  The Board also found that the injuries suffered by the applicant in the incidents did not attain the minimum level of severity.  Nor did it find that the applicant’s great uncle and his cousins were state actors.  The Board was not satisfied that there was sufficiently reliable evidence substantiating the applicant’s claim.

The judge’s decision

6.  The applicant filed his Form 86 on 26 July 2017, seeking leave to apply for judicial review against the Board’s decision.  He set out the grounds for seeking relief in his affirmation filed on the same day in support of the application.  The grounds were summarized by the judge at [13] of the Form CALL-1.

7.  The applicant did not request for an oral hearing, and the judge considered it appropriate to deal with the application on the papers.

8.  As mentioned earlier, the judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [14] – [18] of the Form CALL-1 as follows:  

“14. These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Director or the Board had erred in their decisions, or in what way did the Director or the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

15. Further, the mere existence of a constant pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati and Maria Zubair [2018] HKCA 461. In the present case it has been established by both the Director and the Board that it was a private and personal family dispute between the applicant and his great uncle which formed the core basis of his claim, of which they were entitled to do as the primary decision makers based on the evidence available to them, and I do not see any relevancy or merit in grounds (3) or (4) of the applicant.

16. As for his complaint of the Board failing to give him a further hearing regarding his claim under BOR 2 risk, the applicant clearly attended an oral hearing before the Board on 30 June 2017 which came almost three weeks after the Director‘s Further Decision rejecting his claim under BOR 2 risk, and as recorded in paragraph 11 of the Board’s decision that during that hearing the applicant just confirmed his evidence contained in his hearing bundle without any additional information or grounds for his appeal, and upon which the adjudicator proceeded to consider his claim under BOR 2 risk without a further hearing as he explained in paragraphs 98 – 100 of the Board’s decision as he was in the circumstances entitled to, and I do not find any merit in this complaint of the applicant either.

17. In the premises and having proceeded to consider 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.

18. 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.”

The appeal

9.  On 1 April 2019, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

(a)   The judge’s failure to acknowledge his language incapability was unfair to him.  The Form CALL-1 was not read back to him, which meant that the judge did not even give weight to his handicap;

(b)   The judge failed to consider the significant and the level of unfairness in respect of the applicant’s lack of language assistance;

(c)   With reference to [16] of the Form CALL-1, the judge failed to acknowledge the Board’s erroneous exercise of case management power to dismiss his application based on the lack of additional information in respect of the BOR 2 risk.  It was unfair for the court to leave the assessment in the hands of the Director, who failed to assess it in an oral hearing.  The hearing bundle was not read to him rendering him unaware of its contents;

(d)   It was unfair to have no other revenue of appeal in respect of a decision based on adverse finding of credibility;

(e)   The applicant did not have language assistance at all material times;and

(f)   It was unfair in the assessment of a non-refoulement claim in the absence of interpretation assistance to the claimant.

10.  The applicant lodged his written submission on 14 June 2019.  The applicant submitted therein that:

(a)   The judge erred in holding that the Board was correct to determine his BOR 2 risk without having further hearing for it;

(b)   There was no explanation or guidance provided to him in respect of the assessment of the BOR 2 risk;

(c)   It was unfair for the Board to determine the BOR 2 risk based on the documents contained in the hearing bundle as the contents of the bundle had never explained to him;

(d)   He could not read English fully and did not understand the contents of the hearing bundle; and

(e)   He had not been provided with any legal and language assistance by the Director and the Board.

11.  By a letter dated 1 April 2019, the applicant gave consent that this appeal might be dealt with by a 2-judge court.

12.  We heard the appeal on 15 July 2019.

General principles

13.  Before we address the merits of this appeal, we would highlight the general propositions that this court has adopted in determining an appeal for non-refoulement cases.

(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)   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)   It follows from the above that in an appeal, the scope for admission for new arguments to be run is limited.  This court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time; and

(4)   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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.  In the present case, the Board rejected the applicant’s claim because it was not satisfied that he would face a real risk of being subjected to ill-treatment if refouled.  As explained above, the evaluation of the risk of harm is within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on public law grounds.  After rigorous examination and anxious scrutiny of the materials available before him, the judge found no reasonably arguable basis to challenge the findings of the Board.

15.  Accordingly, the ground challenging the assessment of the applicant’s credibility (see [9(d)] above) has no merits.

16.  It is convenient to categorize the remaining grounds of appeal advanced by the applicant in the notice of appeal and his written submissions into two main grounds: (a) the lack of language assistance (see [9(a)], [9(b)], [9(e)], [9(f)], & [10(d)] above), and (b) the erroneous determination of his BOR 2 risk (see [9(c)], [10(a)], [10(b)], [10(c)], & [10(e)] above).  In our judgment, these complaints have no merits either.

17.  It is noted at the outset that the applicant has never raised any complaint relating to the lack of language assistance.  As explained above, this court will not entertain on appeal new arguments that are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

18.  As this court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.  It is further noted that all court documents in relation to the leave application and this appeal were written in English and that the affirmation filed in support of the leave application contained an interpretation clause.  These indicate that the applicant is conversant with the English language or that he is able to access to language assistance if needed.  We do not accept the assertion that the alleged lack of language assistance would render the process unfair.

19.  Nor do we find anything amiss in the judge’s analysis on the Board’s determination of the applicant’s BOR 2 risk.  In our view, there is no basis for the applicant to challenge the Board’s determination, where the applicant failed to provide any additional information during his leave application, and even in this appeal.  On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk independent from the BOR 3 risk, the persecution risk, and the torture risk.

20.  In this appeal, the applicant failed to pinpoint any viable ground that could reverse the decision of the judge.  Having considered the materials available before us, we cannot find any of such ground either.  In our view, the judge’s observations are fully justified.  We agree that leave to apply for judicial review should be refused.

21.  For these reasons, we dismiss the appeal.