Anjum Zulfiqar v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 347/2019

[2019] HKCA 1308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 347 OF 2019

(ON APPEAL FROM HCAL 1599 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is the appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung (“the Deputy Judge”) as set out in the Form CALL‑1 dated 18 July 2019 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1780. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 13 July 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 19 October 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.By a letter dated 29 July 2019, the applicant gave consent to the appeal being heard by a two-member court. 

A.  Background

3.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 27 December 2015 and was arrested on 27 December 2015.  He lodged a non-refoulement claim on 29 December 2015.

4.The details of the applicant’s claim and his personal background were set out in paragraph 7 of the Director’s Decision, and paragraphs 32-46 of the Board’s Decision.

5.Briefly stated, the applicant claimed that he would be harmed by members of Pakistan Muslim League (Nawaz) (“PML(N)”) because he was a supporter of Pakistan People’s Party (“PPP”) and refused to vote for the PML(N) in the general election in May 2013.  The members of PML(N) first visited the applicant’s generator repair shop in May 2013 and asked him and his family to join PML(N).  The applicant refused and they left without an incident.  During their second visit, the applicant was absent and the group attacked the applicant’s employees.  Shortly after, the PML(N) won the general election. Out of fear, the applicant moved to another city but heard from his brother that the members of PML(N) were looking for him.  After around a year, the applicant returned to his home village.  In November 2015, the applicant was attacked by the same group of PML(N) members.  Subsequently, he felt he had no choice but left for Hong Kong. 

B.  The Director’s Decision and the Board’s Decision

6.The Director assessed the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3] and the BOR2 risk^[4] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

7.The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 18 April 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

8.The Board found that, although the applicant’s claim might be plausible, there were various inconsistencies in his evidence. For example, between the time when the applicant returned home and the time when the applicant was attacked in 2015, if the PML(N) members were really after him, why did they not locate him in other villages but instead waiting for him to come home.  As a result, the Board found that the applicant lacked credibility (paragraphs 50-55 of the Board’s Decision).  Meanwhile, the Board also found state protection was generally available in Pakistan (paragraphs 67 and 71 of the Board’s Decision).  In any event, the Board found that internal relocation was available to the applicant (paragraphs 73-79 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.  

C.  The Deputy Judge’s Decision

9.The applicant filed a Form 86 on 10 August 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review stated in his supporting affirmation filed on the same date were summarized by the Deputy Judge at paragraph 11 of the Deputy Judge’s Decision as follows:

“11. In his affirmation in support of his application dated 10 August 2018, the applicant relied upon the following grounds:

(1) the hearing bundle was given to him shortly before the appeal hearing and it was in English without translation for him;

(2) he did not have legal assistance or language assistance for his appeal;

(3) he was not legally represented for the appeal;

(4) he did not accept the Director’s finding of the fact that his risk of being harmed or killed if he was to be returned to Pakistan was low;

(5) he was not having legal assistance for this application; and

(6) the Board’s Decision was not read to him and he did not know the reasons for rejecting his appeal.”

10.The Deputy Judge heard the applicant’s leave application on 13 February 2019. During the hearing, an interpreter was arranged for the applicant.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 12-22 of the Deputy Judge’s Decision:

“The Director’s Decision

12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

13. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

14. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

15. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decisions

The Board’s Decision

16. The applicant appeared before me. He confirmed that his lawyer had explained the Director’s Decision to him and advised him that he had no grounds for appeal. He had his friend who explained the hearing bundle for him before the appeal hearing. He also said that he had had a fair hearing before the Adjudicator and he had no complaint against him. He came to his Court because he wanted more time so that his problem in his own country might be resolved. He might then safely go back.

17. The applicant further said that the Board’s Decision had been explained to him by his friend. I put the Board’s findings in paragraph 9 above to him for his comments. He had no comments on them.

18. It is obvious that the Board, for the reasons that it had given, did not accept the applicant’s facts of the claim. The applicant’s claim cannot possibly succeed without any fact to support it.

19. Grounds (1), (2) and (6) are simply inconsistent with what the applicant said in court. They fail.

20. Grounds (3) and (5) do not stand as decided in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 at paragraph [22].

21. Ground (4) is only his own opinion. The Board has found the facts of the case. Its Decision is final as held by the Court of Appeal in the case of Re: Moshsin supra. This ground fails too.

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

D. Grounds for appeal

11.The applicant filed the Notice of Appeal dated 29 July 2019 to appeal the Deputy Judge’s Decision.  He had listed out ten grounds of appeal with two exhibits attached – the Deputy Judge’s order to dismiss his leave to apply for judicial review and the Deputy Judge’s Decision. 

12.Despite the lengthy Notice of Appeal, the applicant effectively argues that the Deputy Judge failed to acknowledge his lack of language and legal assistances.  Such failure amounted to procedural unfairness.  To elaborate, the applicant alleged that the Deputy Judge’s Decision was not read to him; the Appeal Bundle was not verified by him; he had help from a friend who is not a professional; the lack of interpretation service.  He also submitted that the Deputy Judge did not elaborate the reasons for dismissing his leave application. 

13.Pursuant to Master Au-Yeung’s directions dated 19 August 2019, the applicant filed his skeleton submissions on 21 October 2019.  In that, he repeated his grounds on lack of legal and language assistance.  He argued that he did not have legal representation before the Board.  Although his friend explained Board’s Decision to him, he still failed to understand the legal jargons.  He also submitted that the Deputy Judge failed to exercise diligent duty of care towards him, a non-litigant who did not understand English.  

14.At this hearing, the applicant confirmed that he had nothing further to add to what had already been set out in the Notice of Appeal and the written submission in support of this appeal.

E.  Discussion

15.The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

16.First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.Bearing these principles in mind, we now turn to consider the grounds of appeal.

21.The grounds relating to the lack of language and legal assistances are basically regurgitation of the arguments advanced but failed before the Deputy Judge.  These two grounds have no merit. It has been repeatedly emphasized by this court that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: see Re Gurnishan Singh [2018] HKCA 704; and Re Gurung Sagar [2019] HKCA 658.

22.In the present case, all the court documents, including the affirmation filed in support of the leave application, the notice of appeal, and the written submission in support of this appeal, were written in English.  Either the applicant is himself conversant with the English language or he has access to language assistance of his own if he deemed necessary.  Interpreter services were provided at hearings at every stage.  Such services were also available at the time when the applicant was assisted by Duty Lawyer.  He was also present before the Board and the Deputy Judge with an interpreter. Nevertheless, no complaint was raised before the Board or the Deputy Judge in relation to the lack of language assistance or the performance of the interpreter.  Thus, we do not accept that the alleged lack of language assistance would render the process unfair in the present case.

23.Further, we note that in the applicant’s supporting affirmation for the leave application before the Deputy Judge, he was able to identify the alleged errors by the Director and the Board and cite legal authorities in support.  In addition, the applicant was able to identify the alleged errors by the Deputy Judge and provided written submissions in English on the alleged errors.  Therefore, there is nothing to suggest that the applicant suffered any prejudice from the alleged lack of legal assistance.  In any event, this Court has emphasised repeatedly that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  There is therefore no merit in this ground.

24.As to the allegation that the Deputy Judge intentionally shortened his reasons, this is misconceived.  It is clear from the Deputy Judge’s Decision that he has provided sufficiently detailed reasons for his conclusion (paragraphs 12-22 of the Deputy Judge’s Decision).  This ground of appeal is also entirely unmeritorious.

25.In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

26.For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.

The applicant acting in person