RE HUSSAIN SAYYED RASHID

CACV 277/2020

[2021] HKCA 57

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 277 OF 2020

(ON APPEAL FROM HCAL NO. 1930 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 16 July 2020^[1] refusing him leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 10 August 2018 which dismissed his appeal against the decisions of the Director of Immigration (“the Director”) of 31 July 2015 and 10 May 2017.  By his decisions, the Director rejected his non-refoulement protection claim.  

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The appeal is dealt with on paper without a hearing due to the non-compliance with the direction on the lodging of a skeleton argument as mentioned below. 

The applicant’s non-refoulement claim

4.  The applicant is a national of Pakistan of 44 years old.  He entered Hong Kong illegally and was arrested by the police on 15 June 2009.  He raised a torture claim on 18 June 2009 which was assessed as a non-refoulement claim upon the commencement of the unified screening mechanism on 3 March 2014.

5.  The applicant’s claim was set out in detail in the Director’s first decision at [6] and the Board’s decision at [19] to [73], and summarized by the Judge at [3] to [5] of the Form CALL-1.  The applicant’s claim is based on his fear of being harmed or killed by (1) a person named Tansar Iftiaz (“TI”), who was the leader of the Sunni Muslims in his village and a member of the Pakistan Muslim League (Q) Party, and (2) a militant Sunni organization, Sipah-e-Sihaba (“SeS”), to which TI and his group belonged.  This is because the applicant and his family are Shia and his father was also a district president of a Shia organization (“TNFJ”) whereas the majority of the population in his village is Sunni.

6.  In gist, the applicant claimed that his father was the organizer of a Shia annual conference scheduled to be held on 24 April 2001, and he had refused TI’s request not to hold the event.  In the evening of the day of the conference, shots were fired at the applicant’s home, which according to the neighbours were carried out by TI’s bodyguards.  The applicant’s family had to leave and stayed at a Shia’s mosque about 60-70 km away from their home village.  In early January 2002, the applicant’s father was kidnapped when he returned to the village after learning that the family land was occupied.  He was later released, but died shortly afterwards from injuries inflicted on him during custody.  The applicant twice attempted unsuccessfully to negotiate with TI for the recovery of the family land, and his reports to the police were to no avail.  In 2005 he joined the TNFJ and became a sub-district president.  In December 2007, shots were fired at the car in which the applicant and his family were travelling.  The applicant believed this was done or orchestrated by TI, who also caused threatening messages to be delivered to the applicant.  In 2008, the applicant’s younger brother was injured by TI’s people who mistook him for the applicant.  The applicant decided to leave Pakistan and applied for a passport.  Eventually in 2009, on the advice of the agent who arranged his travel, the applicant departed for mainland China from where he sneaked into Hong Kong.

The Director’s decision

7.  By two decisions dated 31 July 2015 and 10 May 2017, the Director rejected the applicant’s non-refoulement claim.  The first decision covered the torture risk^[2], BOR 3 risk^[3] and persecution risk^[4] ground while the further decision concerned the BOR 2 risk^[5] ground.  The Director found no substantial grounds for believing the applicant would be in danger of being harmed by TI and SeS on his return to Pakistan, and any risk of harm was further lowered or negated by the availability of state protection and the viability of internal relocation.  The Director concluded that the applicant failed to establish his entitlement to any of the applicable grounds.

The Board’s decision

8.  The applicant appealed the Director’s first decision to the Board.  The Board heard the appeal on 22 June 2018.  By then the Director had given his further decision.  The Board’s appeal therefore covered all the four applicable grounds.  The applicant gave evidence at the oral hearing and had answered questions from the Board. 

9.  By its decision dated 10 August 2018, the Board dismissed the appeal. The Board considered that the applicant’s evidence was vague and generalized and was inconsistent with what he stated in the non-refoulement claim form in material aspects.  The Board did not accept the applicant had given a truthful, accurate or reliable account of his experiences in Pakistan and that a great deal of his case was based on hearsay and speculations.  The Board held that no weight could be attached to his evidence in general and was not satisfied that the applicant would be subjected to serious harm or death at the hands of TI or his people if he were refouled to Pakistan.  The Board concluded that the applicant failed to establish his claim under any of the applicable grounds.        

The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 13 September 2018 to seek leave to apply for judicial review against the decisions of both the Director and the Board.  The grounds he put forward for seeking relief were summarized by the Judge as follows (at [12] of the Form CALL-1):

(1) He was not provided with legal and language assistance in the appeal to the Board.

(2) The Board failed to comply with the high standard of fairness.  It had not given adequate reasons for its decision.  It is wholly unfair, unreasonable, irrational and illogical for the Board to disbelieve the applicant’s evidence.

(3) The Board acted unreasonably in disbelieving that TI had killed more than 100 people inside and outside the applicant’s home village.  It failed to give any or adequate reasons for the finding.

(4) The Board also acted unreasonably in rejecting the applicant’s evidence on his past experiences of being harmed and shot at.  It failed to give proper reasons for the finding.

(5) The hearing bundle was only given to him shortly before the appeal before the Board and it was not translated.

The Judge’s decision

11.  The Judge heard the leave application at an oral hearing.  By his decision dated 16 July 2020, the Judge held that the intended judicial review has no reasonable prospect of success and refused to give leave to apply for judicial review.  His reasons were set out at [13] to [17] of the Form CALL-1 as follows:

“13. The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. His lawyer explained the Director’s Decision to him and his friend explained the Board’s Decision to him.

14. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

15. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …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.”

17. Ground (1) fails in light of the above authorities. Ground (2) to Ground (4) complain lack of explanation for disbelieving his evidence. The Board had given its reasons in its decision. Paragraph 75 states that the evidence was inherently incredible and the evidence was hearsay evidence. For other reasons, see paragraphs 82-91. Ground (5) is inconsistent with what he said in court.”

The grounds of appeal

12.  On 22 July 2020, the applicant filed a Notice of Appeal to appeal the decision of the Judge.  He stated as his grounds of appeal that he was not satisfied with the decision because it was removed from the facts and reality of his case, and there was no transparency in the decisions.

Non-compliance with order to lodge skeleton argument

13.  Directions were given by the Registrar of Civil Appeals on 28 October 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.  The directions were communicated to the applicant by the court’s letter dated 30 October 2020.

14.  The appeal was scheduled to be heard on 14 January 2021.  The Notice of Hearing dated 12 November 2020 reminded the applicant to lodge his skeleton argument by 17 December 2020 and further warned that should he failed to do so he would be deemed to waive his right to have an oral hearing and the hearing date would be vacated with the hearing being determined on paper.

15.  The applicant failed to lodge a skeleton argument on or before 17 December 2020.  The hearing date was accordingly vacated.  By letter dated 22 December 2020, the court informed the applicant that the hearing date of 14 January 2021 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

16.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.  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. Assessment of evidence and country of origin information materials and risks of harm, availability of state protection and viability of internal relocation are primarily within the province of the primary decision makers.  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 and/or the process by which the decision was made.

18.  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. 

Our reasons for decision

19.  The matters stated in the Notice of Appeal are not viable grounds to reverse the Judge’s decision.  As pointed out above, it is not the task of the Judge in adjudicating on the applicant’s application to conduct a fresh assessment of his claim.  Finding of credibility and assessment of evidence, risk of harm and country of origin condition and examination of COI materials are within the province of the primary decision makers.  Unless there are errors of law, irrationality or procedural unfairness in the Board’s decision and findings on the evidence, there is no proper basis for the Judge to intervene.

20.  We have examined the Board’s decision and the reasons it gave for not accepting the applicant’s evidence and case.  We do not discern any errors of law, irrationality or procedural unfairness.  The applicant also has not pointed to any error in the Judge’s rejection of his complaints against the Board’s adverse findings on his credibility and evidence. 

21.  In light of the Board’s rejection of the applicant’s evidence and case, there is no credible evidence to support his claim for non-refoulement protection. We agree with the Judge that the applicant’s intended judicial review has no prospect of success

22.  For the above reasons, there is no merit in the applicant’s appeal.  We therefore dismiss the appeal.