RE ALI AMANAT

CACV 117 /2022

[2022] HKCA 673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 117 OF 2022

(ON APPEAL FROM HCAL NO 2379 OF 2018)

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J U D G M E N T

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

1.  The applicant lodged a Notice of Appeal on 12 April 2022 against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 25 March 2022[1]. By that decision, the Judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal. He lodged his written submissions on 26 April 2022 pursuant to the directions of the Registrar of Civil Appeals.

The applicant’s claim

3.  The applicant is a national of Pakistan aged 43. He entered Hong Kong illegally and was arrested by the police on 18 May 2015. He raised a non-refoulement claim based on his fear of being harmed or killed by his uncle arising out a land dispute.

4.  In gist, the applicant claimed that his father and his uncle inherited a piece of land from his grandfather. His uncle wanted to exchange his portion of the land with his father’s, which was considered to be more valuable. After his father, acting on the applicant’s advice, refused the proposed exchange, his uncle made death threats to the applicant, and also assaulted him together with his sons. The applicant fled to Lahore and worked there. After some ten months, he learnt that his uncle and cousins were still looking for him. Fearing for his safety, he departed for mainland China from where he sneaked into Hong Kong.

The Director’s decision

5.  By a Notice of Decision dated 22 January 2018, the Director rejected the applicant’s non-refoulement claim having regard to all the applicable grounds, including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

6.  The Director assessed that the level of risk of harm the applicant would face is low and the evidence did not show that the uncle had real intention to harm or kill him. The Director also found that the applicant’s problem was a private family dispute that had nothing to do with the government or authorities. The Director held that the availability of state protection and internal relocation alternatives would further lower or negate the level of risk.

The Board’s decision

7.  Their appeal against the Director’s decision was heard before the Board on 31 August 2018. By a decision dated 18 October 2018, the Board dismissed the appeal. Primarily, the Board found significant discrepancies in the applicant’s account that he could not properly explain. The Board was of the view that he had exaggerated his claims in order to advance a claim for non-refoulement protection. The Board assessed the risk of harm to be low and was a localized one, which would be further reduced or negated by the availability of internal relocation alternatives. The Board concluded that he failed to show he was entitled to non-refoulement protection on any of the applicable grounds.

The intended judicial review

8.  The applicant filed a Form 86 and affidavit on 29 October 2018 to seek leave to apply for judicial review against the decisions of both the Director and the Board. In his supporting affirmation, he set out a number of grounds in support of his application, which the Judge had summarized in [8] of the Form CALL-1 as follows:

“(1) that the Director and the Adjudicator determined his case wrongly and failed to address the issues of his claim properly and instead came up with an assessment more or less of a template basis;

(2) that the Director wrongly assessed the Applicant’s risk of harm from his enemies upon his return to Pakistan as low due to availability of state protection despite the fact that the Applicant had been assaulted not once but several times, and that police protection was not available to him despite having made a FIR against his enemies that no action had been taken against them;

(3) that in terms of COI both the Director and the Board had wrongfully exercised their case management power by putting undue weight on reported availability of state protection when the same COI was quoted both for and against the Applicant’s assertion;

(4) that the Director rejected his claim simply for the sake of rejecting all non-refoulement claims and hence adopted a very uniformed approach in all of the conclusions;

(5) that the Board failed to apply high standards of fairness in assessing his claim and failed to give adequate reasons for its decision;

(6) that the Board failed to consider all the documentary evidence provided by the Applicant that it was unfair, unreasonable and illogical for the Board to still reject the credibility of the Applicant’s claims that they did not occur in Pakistan;

(7) that the Board was illogical, unreasonable and unfair for completely rejecting the credibility of the Applicant’s claims without any explanation as to what assertions that the Applicant was to have to explain being an example of the Board providing inadequate reasons for rejecting his claim and not dealing with the facts in a proper way or failing to take into account relevant matters in the Applicant’s claims; and

(8) that the Director quoted various COI that were first used to support the Applicant’s allegations as to state protection then to go against his allegations that the situation has improved in Pakistan without any explanation in terms of how the balancing exercise worked and what tests did the Director apply in concluding that the particular sections of the COI outweigh the others.”

The Judge’s decision

9.  The Judge heard the leave application in an oral hearing. On 25 March 2022, he dismissed the application and gave his reasons at [9- to [13] of the Form CALL-1 as follows:

“9. [The grounds] are however all just 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 apply to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to apply high standards of fairness in their assessment of his claim, or how did they 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, and as such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, nor do I find any basis for his intended application either.

10. 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.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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.

12. 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.

13. 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 grounds of appeal

10.  The applicant appealed the Judge’s decision to this Court. In the Notice of Appeal dated 12 April 2022, she stated by way of grounds of appeal that:

“The High Court did not find any error of proceeding [sic]. I want to show some error. I did not get justice.”

11.  In his written submission, the applicant stated that his life was threatened in his home country, and that he could not return even though he had wanted because of his enemy’s activity.

Legal Principles

12.  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.

13.  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 Country of Origin Information 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.

Analysis and disposition

14.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  The applicant has not identified any error in the Judge’s decision and reasons.

(2)  In any event, assessment of risks of harm is a matter for the Director and the Board, who are the primary decision maker. The Director and the Board had, for the reasons they gave, found the risk of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection. The applicant’s challenge to their decisions was considered by the Judge to be not reasonably arguable. In the circumstances, there is no basis for his assertion that his life would be threatened if he were to return to his home country.

15.  We have separately considered the decisions that the applicant seeks to challenge. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

16.  For the above reasons, there is no merit in the appeal or the intended application for judicial review. Accordingly, we therefore dismiss the appeal.