Re Khan Zabit

CACV 569/2019

[2020] HKCA 357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 569 OF 2019

(ON APPEAL FROM HCAL 1154/2018)

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J U D G M E N T

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

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 4 December 2019.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 26 August 2015 and was arrested by the police on the same day.  The applicant lodged a non-refoulement claim on 28 August 2015 and was then released on recognizance on 22 September 2015. 

3.The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the members of a political party, Pakistan Tehreek-e-Insaf (“PTI”) in his home village, because of his political affiliation as a member of Pakistan Muslim League (N) (“PML(N)”), a rival political party to PTI.  The brief facts of this case were summarized by the Judge in [1]-[3] of the Form CALL-1 ([2019] HKCFI 2424).

4.By a notice of decision dated 10 April 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds.  The former decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claim Petition Office (“the Board”) on 23 April 2018.  The Board decided not to conduct an oral hearing, and deal with the appeal in the absence of the applicant and on papers.  The Board found no evidence that the PTI supporters had ever escalated their action against the applicant, nor any evidence to show that he was or would be a person of any special interest to PTI that would pose any real risk of BOR 2, BOR 3, persecution and torture to him if he returns to Pakistan.  In light of the relevant country of origin information (“COI”), the Board considered that state protection was reasonably available.  Internal relocation was a viable option for him.  By a decision dated 8 June 2018, the Board determined the appeal against the applicant.  

The Judge’s Decision

6.By a Form 86 filed on 21 June 2018, the applicant sought leave to apply for judicial review against the Board’s decision.  An affirmation in support was also filed on the same day.

7.In [8] of the Form CALL-1, the Judge categorized the matters stated in the Form 86 and the applicant’s supporting affirmation into two main ground:-

(a)  The Director just made assumptions about the situations in Pakistan without actually visited it when assessing his claim; and

(b)  He had been aggrieved by the decisions of the Director and the Board in rejecting his claim because the ill-treatment inflicted on him had not attained the minimum level of severity.

8.An oral hearing was held on 19 July 2019.

9.After having rigorous examination and anxious scrutiny and giving due regards to the decisions of the Board and the Director, the Judge refused to grant leave for the applicant to apply for judicial review on 4 December 2019 (“the Decision”).  The reasons in refusing leave were set out in [9] – [14] of the Form CALL-1 [2019] HKCFI 2424 as follows:-

“ 9.  The first ground is clearly not reasonably arguable, as a careful examination of the list of COI referred to in the decision, the Director did have access to the latest and materials and information on the Applicant’s home country when assessing his alleged risk of harm arising from political rivalries in Pakistan, and in the absence of any factual error being clearly shown by the Applicant in those COI relied on by the Director, I do not find any basis or merits in this complaint of the Applicant, nor do I find it reasonably arguable for his intended challenge.

10.  As for his complaint about the finding of both the Director and the adjudicator that his alleged ill-treatment did not attain the minimum level of severity, it is clear from the evidence available that even on the Applicant’s own case that he had in fact never been physically assaulted by those PTI supporters, and upon which the Director and the adjudicator were entitled to make such finding in their considered decisions. As such, I do not find any reasonably arguable basis to challenge the findings of either the Director or the Board.

11.  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 an 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 Diector of Immigration [2018] HKCA 524.

12.  The fact is that it has 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.

13.  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.

14.  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 Appeal

10.On 10 December 2019, the applicant filed a notice of appeal against the Decision.  He stated in the notice that he is unable to relocate in other cities in Pakistan because he does not have a job in Pakistan that can support himself and his opponents will locate him easily.

11.In compliance with the directions of the court, the applicant lodged his written submissions on 7 January 2020.  The submissions contained in his written submission may be summarized as follows:-

(a)  All his submissions are in good faith and reflect his genuine thoughts.  He has not changed his story.

(b)  The Board had unlawfully fettered its discretion by refusing his appeal that it did not satisfy the requirements, the decision was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness.  It failed to apply high standards of fairness owed to a self-represented claimant.  It provided an English hearing bundle but did not give sufficient time for him to prepare for his appeal.  It had significantly relied on sources of news not officially recognized or were hearsay or outdated that resulted in its groundless speculation that it would be safe for him to return to his home country.  The Board failed to examine or give sufficient weight to the extended concept of state acquiescence.  Its conclusion on the practical steps taken by the Pakistani government was mere speculation.  It also failed to make sufficient enquiry before finalizing its decision.

(c)  The Director failed to consider the concept of extended acquiescence, his conclusion on the Pakistani government’s combat against terrorists was mere speculation. Contrary to what was quoted in the Director’s decision, the corruption and incompetency of “Philippines police”[5] remain serious according to an online document.  The Director failed to advise the applicant to obtain medical report and/or evidence from the Pakistan authorities when assessing BOR 2 risk.

(d)  He relied on the cases of Ubamaka Edward Wilson v Secretary for Security and Another (2012) 15 HKCFAR 743 and C and Others v Director of Immigration and Another (2013) 16 HKCFAR 280.

(e)  He was tortured mentally and physically by the opponents.  Even though it is his personal matter, the opponents have relation with government parties and some senior police.

(f)   The Director mentioned that he can relocate himself in other place but he will not be able to support himself in other village or city because it would be difficult for him to find a job or the salary will be too low to afford his rent and food.

(g)  If he returns home he will be killed or harmed by his enemy and the government cannot protect him.

12.The applicant also raised a number of questions in the written submission for which he seeks the Director’s answers[6]. 

13.We heard the appeal on 19 May 2020.

The General Principles

14.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in [11] – [14] of the Form CALL-1.

15.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, this Court 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.

16.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, this Court 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.

Discussion

17.In the present case, the Board rejected the applicant’s claim due to the finding that he would not face a real risk of harm if refouled.  The Board also found that state protection was available to him.  As explained above, assessments of risk and availability of state protection are within the province of the Board.  As it has been explained in Re Litoun Mounsy [2018] HKCA 537 at [11(a)] and Re Mizan Sikder [2019] HKCA 20 at [13(1)], the court will not interfere with the findings of the Board unless they are reversible on the public law grounds. After rigorous examination and anxious scrutiny of the case, the Judge did not find any realistic prospect of success in challenging the findings of the Board in the intended judicial review.

18.As mentioned above, this Court is not the forum for the applicant to advance fresh arguments which he had failed to run before the Judge. Before the Judge, the application for judicial review focused on the findings of the Board and the Director that the threats uttered to him did not meet the minimum level of severity to pose a substantial risk of harm.  The Judge also examined the prospect of internal relocation.

19.There was no challenge with regard to procedural regularity and fairness.  The Board had reminded itself of the relevant authorities and principles on oral hearings and considered that it was not necessary to have one in the present case at [10] to [22] of the Board’s Decision.  Bearing in mind that the Board accepted the version of the fact as advanced by the applicant and the issues raised in the case, we do not find the course adopted by the Board to be irregular or unfair.  In the circumstances, it is plain that the submissions of the applicant (raised for the first time before us) concerning the bundle and preparation time for Board hearing is factually inaccurate.  The submission on extended concept of state acquiescence (again not raised before the Judge) has no evidential or factual basis.  We cannot see how the applicant can rely on the same in view of the confinement of his case on oral threats and his own evidence that he had not reported to the police.  His case could not meet the test for the application of such concept, see Re Esmerez Maria Nieva Gelito [2018] HKCA 611 at [16]-[19]. 

20.His complaint about the Director’s failure to advise him to seek medical report is plainly vexatious since he had not suffered any injuries.  

21.In respect of the reliability of the COI, the Judge had addressed the same at [9] of the Form CALL-1.  The applicant’s submissions in this regard are bare assertions without particulars or evidence in support.  Those submissions do not constitute valid grounds for reversing the Judge.

22.On the assessment of the lack of substantial risk of harm, we cannot find error in the Judge’s analysis at [10] and [11] of the Form CALL-1.

23.On internal relocation, we cannot find error in the Judge’s reasoning at [12] of the Form CALL-1.  His bare assertion that he could not relocate to other areas is not supported by objective evidence. 

24.The applicant has failed to advance any effective argument that can justify a reversal of the Decision.

25.Having considered the materials available before us, we agree with the Judge that leave should not be granted to the applicant to apply for judicial review.

26.For these reasons, we dismiss the appeal.

The applicant appearing in person