RE ZAHID MUHAMMAD

CACV 244/2022

[2022] HKCA 1129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 244OF 2022

(ON APPEAL FROM HCAL NO. 2559 OF 2018)

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JUDGMENT

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

Introduction

1.  The applicant lodged a Notice of Appeal on 17 June 2022 to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 7 June 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 his 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 4 July 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 6 March 2008. He raised a torture claim but withdrew it on 2 February 2010. He was removed to Pakistan on 20 April 2010. He later re-entered Hong Kong illegally and was arrested by the police on 8 May 2015. He raised a non-refoulement claim based on his fear of being harmed or killed by (1) Zulfiqar (“Z”) because he refused to join Z’s party, Pakistan Muslim League N (“PLMN”) and was falsely accused of being responsible for the death of Z’s brother, Javeed (“J”) ; and (2) Waris (“W”) and his cousins, who were gangsters, due to a land dispute.

4.  In gist, the applicant claimed that on two occasions in 2006 and 2008, he was threatened and attacked by Z and J and his group of people due to his refusal to join their party. At the time, Z and J were members of the Muslim League Noon. Fearing for his safety, he fled to Shenzhen from where he sneaked into Hong Kong. After he had raised a torture claim, he learnt from his brother that Z and J had agreed not to harass him further. He therefore withdrew his torture claim and was repatriated to Pakistan in April 2010. In 2013, the applicant became a supporter of the Pakistan Tehreek-e-Insaf party. Soon afterwards, Z and J, who had by then joined PLMN, again approached him and asked him to join their party. When he refused, they threatened him that there would be serious consequences.

5.  The applicant also claimed that in 2014, W and his cousins, who lived near the applicant’s home, claimed that the land on which the applicant’s family had lived since 2006 belonged to their family. They demanded to have the land back. They brought gangsters to the applicant’s home, fired gun shots and vandalized the house. The applicant and his brother made a report to the police, but they refused to register the complaint. The applicant’s family eventually moved away, and the applicant decided to flee to Hong Kong. In 2016 while in Hong Kong, the applicant learned from a friend that J was murdered and J’s family had filed a false complaint to the police accusing him of being responsible for the murder.

The Director’s decision

6.  By a Notice of Decision dated 30 August 2017, 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].

7.  The Director assessed that the level of risk of harm the applicant would face is low and there is no reliable evidence that the PLMN supporters still had an adverse interest in him after all these years. The Director also found that the applicant’s problem with W and his cousins was a private 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

8.  The applicant’s appeal against the Director’s decision was heard before the Board on 23 July 2018 during which the applicant gave evidence and answered questions from the Board. By a decision dated 26 October 2018, the Board dismissed the appeal. Primarily, the Board found the applicant’s evidence vague, contradictory and inherently implausible, and rejected the applicant’s claims individually and cumulatively. The Board found the applicant would not be at risk of any harm. The Board considered there were no substantial grounds for believing the applicant would be in danger of being tortured, subjected to mistreatment or arbitrarily deprived of life or persecution if he were to return to his home country. 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

9.  The applicant filed a Form 86 and affirmation on 14 November 2018 to seek leave to apply for judicial review against the decisions of both the Director and the Board. His grounds in support of the application were summarized by the Judge in [14] of the Form CALL-1 as follows:

“(1) that the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim in that they were not fair or reasonable in failing to take account of the fact that his right to life must be protected by criminal law from extra-judicial killings such as the Applicant believes that they failed to give him sufficient time or opportunity to arrange relevant evidence for his claim as well as his appeal;

(2) that it was a clear case of unfair attitude shown by them against the Applicant which is in itself enough to render the decisions void; and

(3) that they failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the Director and the Board failed to attain high standards of fairness required by the Wednesbury test in their decisions.”

The Judge’s decision

10.  The Judge heard the leave application at an oral hearing on 22 April 2022. On 7 June 2022, he dismissed the application and gave his reasons at [15] to [20] of the Form CALL-1 as follows:

“15. [The grounds] 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 apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they show an unfair attitude towards the Applicant or how did they fail to apply high standards of fairness in their assessment of his claim, how why would protection from extra-judicial killings be relevant to his claim when even on the basis of his own case were isolated incidents of conflicts between supporters of rival political parties or private land dispute between 2 local families without any state or official involvement that there was simply no evidence of any risk of extra-judicial killings that he may face upon his return to Pakistan. None of these bare assertions were elaborated or presented with any particulars or specifics by the Applicant or are in any way relevant to his claim even based on his own case, and as such I do not find any of them reasonably arguable for his intended challenge.

16. 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.

17. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 40 – 57 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18. Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19. 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.

20. 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

11.  The applicant appealed the Judge’s decision to this Court. In the Notice of Appeal dated 17 June 2022, he stated by way of grounds of appeal that:

“The High Court did not find any error of proceeding but I can show many error [sic]. Give me a chance to show the error of the adjudicator. My apply [sic] should not be refused.”

12.  The written submission gave an outline of the applicant’s claim. It complained that the Board did not give the applicant enough time, acted as if it was the applicant’s opponent and asked “unwanted” questions, and did not make its decision based on the law. It asked the Court of Appeal to consider the applicant’s points, which were not considered by the Judge.

Legal principles

13.  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.

14.  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

15.  We are of the view that the matters and arguments stated in the notice of appeal and the written submission have no merits. Firstly, and critically, the applicant has not identified any specific error in the Judge’s decision and reasons. Secondly, as the Judge rightly pointed out, the complaints made against the Board are general assertions unsupported by particulars.

16.  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 is correct in refusing to give leave to apply for judicial review.

17.  As there is no merit in the appeal or the intended application for judicial review, we dismiss the appeal.