RE JAVED ZAKIR

CACV 191/2019

[2019] HKCA 1150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 191 OF 2019

(ON APPEAL FROM HCAL NO. 189 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.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 12 April 2019 refusing him leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 31 August 2016 and 23 March 2017 rejecting his non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 2 February 2018 dismissing his appeal against the Director’s decisions.    

2.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 2 December 2013.  He lodged a torture claim in December 2013, which was assessed as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014. 

3.  The applicant’s claim is based on his fear of being harmed or killed by the Taliban members.  His case was set out in details in [7] to [38] of the first decision of the Director.  In gist, the applicant said that during a burglary to his home carried out by Taliban members in late 2013, his brother was shot dead.  The burglars initially told the applicant to go with them, but eventually gave him time to settle his family matters, and warned him not to betray them.  A report was made to the police, who did nothing.  On his father’s advice, and fearing for his safety, the applicant left for Shenzhen, from where he came to Hong Kong.  

4.  By the decision dated 31 August 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], and persecution risk[3] grounds. By a second decision dated 23 March 2017, the Director further assessed the applicant’s claim under the BOR 2 risk[4] ground and decided against it.

5.  The applicant appealed the Director’s decisions to the Board, which heard the appeal on 18 January 2018.  By a decision dated 2 February 2018, the Board dismissed the appeal.  For the reasons set out in [29] to [31] of the decision, the Board found the applicant’s claim not credible.  The Board concluded that the applicant was not a genuine claimant, and that he failed to establish a case in respect of any of the applicable grounds. 

6.  The applicant filed his Form 86 together with a supporting affirmation on 8 February 2018 seeking leave to apply for judicial review against the decisions of the Director and the Board.  At the applicant’s request, the Judge heard the leave application at a hearing held on 9 October 2018. 

7.  The applicant relied on the following grounds to seek relief:

(1)  The Director and the Board reached the wrong decision in assessing his non-refoulement claim.

(2)  The decisions of the Director and the Board were Wednesbury unreasonable or unfair.

(3)  The Director and the Board failed to take into consideration that the right to life must be protected from extra-judicial killings, which the applicant would face if refouled to Pakistan.

(4)  The Board failed to give the applicant sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal.

8.  By the Form CALL-1 dated 12 April 2019, [2019] HKCFI 928, the Judge refused to give leave to the applicant to apply for judicial review. He set out his reasons at [11] to [17] as follows:

“11. These are however all just broad and vague assertions of the applicant containing several 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 adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable under the Wednesbury test, or what relevancy were extra-judicial killings to do with his case. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12. As for his complaint of not being given sufficient time or opportunity to adduce his evidence in support of his claim in his appeal before the Board, he never raised this issue with the adjudicator at his oral hearing, nor did he request for further time to enable him to do so. Even in his application now before me he did not produce any additional evidence or make any further presentation of his claim other than those stated in his Form and supporting affirmation. In the premises I do not find any merit in this complaint of the applicant either.

13. The fact is that his claim was rejected essentially on his credibility by the adjudicator with the benefit of hearing him at his oral hearing and on the evidence available to him and for the detailed analysis and reasons as set out in paragraphs 29 – 31 of his decision but in which the applicant has failed to identify any legal errors or procedural unfairness or irrationality for his intended challenge.

14. As has been repeatedly emphasized by the Court of Appeal, 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 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 Re Nupur Mst [2018] HKCA 524.

15. Furthermore, as it has also been established by both the Director and the Board in their respective decision 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.

16. 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.

17.  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.”

9.  The applicant filed a notice of appeal on 23 April 2019, which contained the following ground of appeal:

“[T]he gravity of my circumstances have noted [sic] been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

10.  In his written submission lodged on 28 June 2019, the applicant quoted passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submission further referred to section 37ZT of the Immigration Ordinance, Cap. 115, and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.        

11.  We heard the appeal on 14 October 2019.  At the hearing, the applicant asked that his case be looked at closely.  Other than this, he had nothing further to add.

12.  We are of the view that the ground of appeal set out in the notice of appeal is unarguable.  The Board had rejected the he applicant’s case as not credible and unreliable.  This being the case, there is no factual basis to support the applicant’s claim that he would face risk of harm or torture if refouled to Pakistan.  Further, this Court has repeatedly emphasized that judicial review does not operate as a rehearing of an applicant’s non-refoulement claim.  Evaluation of the claim and evidence and assessment of its merits is a matter for the Director and the Board, who are the primary decision-makers.  The Court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  The applicant has not pointed to any error in the Board’s assessment of the credibility and merit of his claim.  There is no proper basis for the Court to interfere with the Board’s assessment of and conclusion on the credibility and reliability of his claim.  

13.  As to the matters raised in the written submission, for the reasons given by Judge (see [8] above), which we agree, they do not serve to advance the applicant’s case.    

14.  For the above reasons, there is no merit in the appeal.  Accordingly, we dismiss the appeal.