Re Naveed Muhammad

CACV 27/2018

[2018] HKCA 363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 27 OF 2018

(ON APPEAL FROM HCAL 209/2017)

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Before: Hon Cheung CJHC and Hon Barma JA in Court

Date of Hearing: 20 June 2018

Date of Judgment: 25 June 2018

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1.This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 2 February 2018 refusing leave to apply for judicial review.

2.The applicant is a Pakistani.  He left Pakistan for the Mainland on 3 October 2013.  He entered Hong Kong illegally on 13 October 2013, and was arrested by the police on the same day.  He lodged his non-refoulement claim on 16 October 2013.  The claim was based on his fear of being harmed, or even being killed, by his three cousins because the applicant refused to sell his family land to them.

3.By a notice of decision dated 2 November 2015, the Director of Immigration rejected his claim.  The director considered that, given the low intensity and frequency of the applicant’s past ill-treatments, the alleged fear of harm would unlikely materialise.  The availability of state protection and the viability of internal relocation would also lower the risk of harm.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

4.By a notice of further decision dated 3 November 2016, the director also assessed the applicant’s BOR 2 risk[4], and determined the risk against the applicant.

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 30 November 2016, the board dismissed his appeal on 6 February 2017.  The board considered that the dispute between the applicant and his three cousins was a private one without the involvement of the state.  Given the applicant’s description of his injuries, the board was not satisfied that the injuries could meet the legal requirement of “minimum level of severity”.  Nor did the board accept that the three cousins would be prepared to spend tremendous manpower and resource to search for the applicant all over Pakistan.  The board found that there was no substantial risk or substantial basis for fear if the applicant were to return to Pakistan, and that he could safely relocate to a safe part of the country without any hardship.  The board also questioned the applicant’s credibility because of his failure to raise a torture claim as soon as he left Pakistan.

6.The applicant filed the form 86 on 15 May 2017 in respect of the board’s decision.  The form 86 did not contain any grounds for seeking relief.  In his affirmation dated 15 May 2017, the applicant deposed that:

“There are many irrelevant facts in decision made by Torture Claims Appeal Board. I had not been giving any chance to submit any additional facts according to my BOR 2 Claim. I had never received any letter from Immigration department by which they had invited me to submit additional facts regarding to my Non-refoulement claim BOR2 on or about 3 November 2016. There is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were favor on reject my claim. Actual life occur different situation than mentioned COI information. Officer prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim…”

7.In an exhibit marked “NM” to the said affirmation, the applicant also sought to advance the following additional grounds:

“13. The Appeal Decision to reject my appeal was procedurally unfair. The procedure by which the Adjudicator arrived at the Appeal Decision was unfair.

14. The approach to the country of origin information was selective and failed to address the negative aspects, especially about the corrupted police in Pakistan which supported my claim.”

8.The deputy judge noted that the application for leave to apply for judicial review was not made within the statutory time limit.  After considering the relevant legal principles and taking into account the circumstances leading to the delay, the deputy judge granted leave for the applicant to proceed with the application out of time.

9.The deputy judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 22 and 23 of the CALL-1 form:

“22. I am however unable to find any details or particulars provided by the applicant in respect of either of the grounds in his affirmation, such as what additional facts or materials that he would want to submit or would have been able to submit had he indeed received the letter from the Immigration Department inviting him to do so, or what error in law or procedural unfairness that the Director or the Board may have committed in their determination based on objective COI that internal relocation would be available and reasonable in his circumstances to return to Pakistan, as it is clearly for him to prove his case and accordingly bear the burden to provide details or specifics, which he has not, to show what error in law or procedural unfairness are said to have been committed by either decision maker, and having rigorously examined and anxiously scrutinized the detailed assessments and analysis in the decisions of both the Director and the Board, I am satisfied that both have taken into account all relevant considerations in their determination that internal relocation would be available and reasonable for the applicant to return to Pakistan, and given both their findings that the risk of persecution or torture as alleged by the applicant is a localized one and that it is not unreasonable or unsafe for him to relocate to another part of Pakistan, I am unable to see any basis in the applicant’s challenge of either decisions.

23. In the premises I do not see any ground of the applicant which shows any error in law or procedural unfairness on the part of either the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.  I am therefore not satisfied that his intended application for judicial review is reasonably arguable, and accordingly I refuse his leave application.”

10.In the notice of appeal dated 5 February 2018, the applicant contended that, before finding that there were insufficient details or particulars in support of the application, the deputy judge should have invited the applicant to submit further documents or held an oral hearing to clarify the issues.  

11.By a letter dated 22 March 2018, the applicant agreed that the appeal be heard by a two-judge court.

12.In compliance with the directions given by the Registrar of Civil Appeals on 29 March 2018, the applicant lodged his skeleton argument on 21 May 2018.  In the skeleton argument, the applicant advanced the following grounds of appeal:

(a)   the lack of legal and language assistance rendered the process unfair; and

(b)  the deputy judge should have held an oral hearing in order to clarify the issues. 

13.We heard the appeal on 20 June 2018.

14.We note that the ground relating to the lack of legal and language assistance was never advanced in the form 86 or the supporting affirmation for leave to apply for judicial review.  As we have said many times before, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below.  This is equally apposite in an appeal against the refusal of leave.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of High Court (Cap 4A): Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; and Re Daljit Singh [2018] HKCA 328.

15.In any event, we do not see any merits in this new ground.  As we have repeatedly held, neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prababar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 prescribe that a CAT claimant or a claimant of BOR 2, BOR 3 or persecution risk has an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  The applicant has already had the benefit of legal representation in presenting his case to the director.  He applied for legal aid in respect of his application for leave to judicial review, but his application was rejected.  We do not find anything amiss in the process.

16.Nor is there any merit in the complaint concerning the lack of language assistance.  We note that all court documents, including the form 86, the supporting affirmation, the notice of appeal, and the skeleton argument, were written in English.  This indicates either that the applicant is familiar with the English language, or that he has access to, or is able to seek, language assistance when he requires it.  We note also that there was no interpretation clause in the affirmation that he made, which again suggests that he is able to understand English without difficulty.  For these reasons, we reject the ground based on the alleged lack of language assistance.

17.As regards the deputy judge’s failure to hold an oral hearing to clarify issues, it is apparently based on a misreading of the deputy judge’s reasoning.  It is clear from the CALL-1 form that the deputy judge’s refusal to grant leave to apply for judicial review was based on the applicant’s failure to demonstrate any legal errors in public law that warranted the court’s interference with the board’s decision.   It is not a case where there were outstanding issues that needed to be clarified with the applicant.  We further note that, even in this appeal, the applicant still fails to identify what further information regarding the BOR 2 risk that he could have provided to the director.  Nor does he give any particulars as regards the alleged legal errors in the board’s decision.  Accordingly, there is no reasonably arguable basis for the court to judicially review the board’s decision.  The deputy judge was entirely correct to refuse leave to the applicant to apply for judicial review against the board’s decision.

18.The board has given full reasons for its decision.  In particular, in paragraphs 16 and 17 of its decision, the board dealt with the country of origin information (“COI”) in some detail.  We do not find anything amiss in it.  We note in paragraph 17 of the board’s decision that it has explained the implications of the COI to the applicant.  The applicant was also given an opportunity to respond, which he did.  In his response, the applicant agreed that, if he returned to Pakistan and was harassed or attacked again, he could obtain help from the Pakistani Police.  That being the case, the board cannot be criticised for its handling of the COI, or its conclusion on internal relocation.

19.We also note that the applicant has never raised before the board the complaint that he was not given a chance to submit additional material in respect of the BOR 2 risk.  On the facts of this case, we cannot see any additional basis for advancing a claim under BOR 2 other than that already relied upon in respect of the BOR 3 risk, the persecution risk, and the torture risk.

20.Having considered the submissions of the applicant in light of the material before us, we find the deputy judge’s observations to be fully justified.  We do not see any error of law or procedure in the proceedings before the board, and there is no reasonably arguable basis to challenge the fairness of the process. Determination of the merits of the non-refoulement claim is a matter for the director and the board, not the court.  We agree that leave to apply for judicial review should not be granted.

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

The applicant appeared in person