RE TALLAT MEHMOOD

CACV 322/2020

[2021] HKCA 245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 322 OF 2020

(ON APPEAL FROM HCAL NO. 2608 OF 2018)

_______________________

_______________________

___________________

J U D G M E N T

___________________

Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“the Judge”) given on 29 July 2020 in HCAL 2608/2018 refusing leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (“the Director”) dated 28 March 2018 and the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 22 October 2018.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 24 November 2020, the applicant shall lodge with the court 2 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 25 January 2021.  Despite the letter sent by the court on 25 November 2020 reminding the applicant of the aforesaid directions, he failed to do so.  The Registrar had further directed that in the event of the applicant’s failure to lodge skeleton arguments, the applicant shall be deemed to have waived his right to have an oral hearing and this Court shall proceed to determine the appeal on paper only.

Background

3.  The applicant is a Pakistani national. He sneaked into Hong Kong on 25 December 2015 and was arrested by police on 27 December 2015.  He was then referred to the Immigration Department for investigation.  He lodged his non-refoulement claim by way of written representation dated 29 December 2015 on the basis that if refouled, he would be killed by the Butt brothers, his political opponents from the Pakistan Muslim League (Nawaz) because he was a supporter of the opposing Pakistan Muslim League (Quaid e Azam Group) and they believed that he was involved in the murder of their brother, Khawar Butt. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1738. 

4.  By the Notice of Decision dated 28 March 2018, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  The applicant appealed to the Board.  After an oral hearing on 2 August 2018, the Board dismissed the appeal on 22 October 2018.  The Board, for the reasons stated in [81] to [87], did not find the applicant a witness of truth as his evidence was vague and contradictory and that he had fabricated claims in relation to the alleged conflicts and fights with the Butt brothers.  The Board further rejected the suggestion that the applicant was accused by the Butt brothers or the police of being involved in a murder or a rape case or he had ever been arrested, detained by the police, imprisoned by or taken to court.  In light of the aforesaid findings, the Board found that the applicant did not leave Pakistan for fear of harm from the Butt brothers or the authorities and there is no real risk of any proscribed forms of harm should the applicant return to Pakistan.  The applicant’s claims for non-refoulement protection were not made out on any of the applicable grounds.

The Judge’s decision

6.  On 20 November 2018, the applicant filed his Form 86 to apply for leave for judicial review against the decisions of the Director and the Board.  The Judge was right to only consider the grounds of challenge against the Board as the Director’s decision is not a decision that, within this administrative structure, susceptible to judicial review once an appeal to the board is pursued by a claimant: see Re Moshsin Ali [2018] HKCA 549 at [45].  As duly summarized by the Judge at [11] of the CALL-1 Form, the grounds against the Board were as follows:

(1)  The Board did not address his grounds of appeal against the Director’s decision. He was doing the case more or less of a template basis.

(2)  The Board had put undue weight on the Country of Origin Information (“COI”) on state protection.

(3)  He did not have legal representation for this application for leave to apply for judicial review.

(4)  It was unfair, unreasonable and illogical for the Board to give no credence to his evidence.

(5)  The Board had failed to assess the evidence for torture claim cases in the way it should be assessed as laid down by the Court of Appeal in Shafqat Ali v Betty Kwan and Others (unreported, HCAL 74/2012, 17 December 2013).

(6)  The Board did not explain why it did not accept his memory problem – sometimes he could not give exact date.

(7)  It was unreasonable for the Board not to accept his evidence that he had lost his uncle’s contact in the UK.

(8)  The Board’s decision was not interpreted to him and therefore he was unable to understand the reasons behind its rejection of his evidence.

7.  The hearing was initially fixed for 10 September 2019 but the applicant failed to attend.  By the CALL-1 Form dated 29 July 2020, the Judge dismissed the application on paper.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [13] – [22] of the CALL-1 Form:

“13.  The Board had pointed out to the applicant at the hearing why it did not believe his evidence as set out in paragraph 77 of the Board’s Decision. The Board had also set out the reasons in its Decision why it found his evidence not credible and that he had fabricated his story.

14.  The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

15.  This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

16.  The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings. Ground (3) fails.

18.  The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as he may desire [16]. Ground (8) fails.

19.  I shall deal with the other grounds.

20.  Grounds (1), (2), (4), (5) and (7) are his opinions without any evidence or particulars to support them.

21.  The Board had set out the cautions that it should bear in mind when assessing the evidence and the Adjudicator had given his reasons for his decisions. The evidence has to be assessed individually and cumulatively. Ground (6) fails.

22.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

The Appeal

8.  On 4 August 2020, the applicant filed his Notice of Appeal.  He did not provide any grounds of appeal save for saying that he does not agree with the Judge’s decision in refusing to grant him leave for judicial review without showing any good cause.  He claimed that his story is true but the Director dismissed his non-refoulement protection claim and it is very painful for him.  He further complained that the Judge cancelled his application for leave to apply for judicial review without showing any good cause.

General Principles

9.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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.  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

10.  We do not see any merit in the matters set out in the Notice of Appeal.  They are nothing more than the mere disagreement on the part of the applicant with the Judge’s refusal of his application without any substantiated grounds.  His complaints that the Judge failed to show good cause for his decision is ill-founded and without basis.  As pointed out in [7] of this judgment, the Judge had duly explained his reasons in refusing leave in [13] to [22] in the CALL-1 Form.  Further, his complaint that the Judge cancelled the oral hearing is unfounded.  The hearing was held but he did not attend.

11.  Regarding the applicant’s complaint against the Director’s findings, as explained in [6] of this judgment, the Director’s decision is not susceptible to judicial review once an appeal to the Board is pursued and having read the decision of the Board, we take the view that the Board had carefully considered the applicant’s evidence and it was perfectly open for the Board to dismiss the applicant’s case on the issue of credibility when his evidence given at the appeal hearing was vague and contradictory. 

12.  We are also satisfied that the Judge had duly considered the Board’s decision carefully and we found no errors of law or procedural unfairness or irregularities in the Judge’s decision.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.