Usman Gani v. Torture Claims Appeal Board and Another

CACV 127/2020

[2020] HKCA 897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 127 OF 2020

(ON APPEAL FROM HCAL 263/2017)

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BETWEEN

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J U D G M E N T

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

Introduction

1.On 14 May 2020, Yau J (“the Judge”) refused to grant the applicant leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 18 May 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 12 August 2016 and 16 March 2017 rejecting the applicant’s non-refoulement claim.

2.On 21 May 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.The applicant is a Pakistani national.  He entered Hong Kong legally on 29 April 2004.  He has remained here since.  In 2006, he applied to the United Nations High Commissioner for Refugees for protection and was rejected.  On 23 February 2011, he was arrested and two days later, referred to the Immigration Department.  He raised a torture claim on 26 February 2011 and was released on recognizance on 12 April the same year. 

4.The applicant’s claim was based on the fear that if he were to return to Pakistan, he would be harmed or even killed by Malik Saraj and some others who demanded that he and his father should surrender their land to Saraj.  Saraj was a man closely connected to the Pakistan People’s Party.  The factual background was succinctly summarized by the Judge in [1] – [4] of the Form CALL-1 ([2020] HKCFI 758).

5.The Director refused the applicant’s torture claim on 27 January 2012, under the former Enhanced Administrative Mechanism.  The applicant did not appeal against that decision.  However, two days after his re-arrest on 17 April 2013, he made a non-refoulement claim and was released on recognizance on 25 April 2013.

6.On 30 May 2016 the applicant submitted a Supplementary Claim Form under the Unified Screening Mechanism.

7.By notices of decision dated 12 August 2016 and 16 March 2017, and having assessed the applicant’s claim on all applicable grounds that had not been previously considered, the Director found against the applicant.  The former decision covered BOR 3 risk[1] and persecution risk[2]; the latter, BOR 2 risk[3].

8.The applicant appealed to the Board against those decisions, for which he attended an oral hearing on 22 March 2017.  On 18 May 2017, the Board dismissed the appeal on the basis that the applicant was not a reliable witness, and that there was no genuine, substantial and/or well-founded BOR 3 risk, BOR 2 risk and persecution risk.

Decision of the court below

9.On 2 June 2017, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  As stated in his Form 86, his grounds for seeking relief were that:

(a)  the Board unlawfully fettered its discretion;

(b)  the Board was procedurally unfair in dealing with the appeal;

(c)  the Board’s refusal of the appeal was unreasonable or irrational;

(d)  the Board failed to meet a greater care and duty owed to an unrepresented applicant;

(e)  as most documents in the hearing bundle were in English, and the bundle was served on the applicant only 6 days before the hearing (including the weekend), there was insufficient time for the applicant to prepare for the hearing (by reason of his limited English skills and lack of representation);

(f)  the applicant answered all questions honestly and it aggravated him that his credibility was found questionable;

(g)  the Board relied on hearsay, unreliable or non-credible sources of information and outdated cases, which resulted in the Board engaging in groundless speculation.

10.Upon considering the documents only, the Judge refused to grant the applicant leave to apply for judicial review on 14 May 2020.  The reasons for the refusal were set out at [11] – [16] of the Form CALL-1 ([2020] HKCFI 758, HCAL 263/2017), as follows:

“11. I have considered the evidence and decisions of the Director of Immigration and the TCAB.  They have looked into all the available grounds of non-refoulement claim of the applicant and I do not find any error in law or procedure.

12. The applicant submits by way of his affirmation that there was an unreasonable delay of more than 1 year by the Director in screening his torture claim, and because of such delay he was unable to retrieve documents and to obtain evidence from his home country to support his claim.  The applicant arrived in Hong Kong in 2004 and when his application for protection to the UNHCR was rejected in 2007 he chose to remain in Hong Kong illegally. He did not raise the torture claim until he was arrested in 2011.  Taking into consideration of the heavy workload of the Director in dealing with the large number of applications similar to that of the applicant, the time taken by the Director to process the torture claim of the applicant was certainly not unreasonably long.  If there was any delay it was occasioned by the applicant himself.  The applicant had stayed in Hong Kong for about 7 years before he filed his torture claim.  There no doubt was plenty of time for him to obtain the necessary documents and evidence to support his claim.  The complaint of the applicant in this regard is totally unfounded.

13. The applicant complains that on 15 March 2017 the Director served the hearing bundle which was in English on him for the hearing before the TCAB which was scheduled for 22 March 2017 and he did not have the means and time to have the bundle translated into his language.  He was as a result unable to prepare sufficiently for the hearing.  Judging from the way the applicant prepared the documents for the torture claim and the present application the applicant should have no difficulty to enlist assistance to do the same for the TCAB hearing.  Most importantly, it can be seen from the decision of the TCAB that the adjudicator had assisted the applicant throughout the hearing and illicited evidence from him by asking him questions.  The applicant was able to state his case fully in the hearing and the TCAB had considered all aspects of his appeal.  The complaint of the applicant in this regard has no merits.

14. The applicant also relies on the ground that the TCAB has no reasonable basis to reject his credibility.  This concerns the finding of facts by the TCAB and the TCAB has in its decision given detailed explanations why it had found the applicant to be incredible. This court does not see any justification to interfere with the finding of the TCAB.

15. The applicant further complains that the TCAB relied significantly on the source of news which was not officially recognised or was simply hearsay and on outdated cases.  He, however, has not given any details or particulars of such source of news and outdated cases or elaborated on how the decision of the TCAB had been affected.  The Director in considering the claim of the applicant referred to a considerable amount of materials relating to the conditions in Pakistan, including the COI report, the Country Information and Guidance Pakistan relating to land disputes, actors of protection and internal relocation issued by the UK Home Office in 2014, the Country Reports on Human Rights Practices of Pakistan for 2015 issued by the US State Department in 2016 and the Immigration and Refugee Board Report of Canada issued in 2014.  The TCAB although referred only to COI report it had examined and analysed the decisions of the Director very carefully and thoroughly.  The complaint of the applicant in this regard cannot be substantiated.  More importantly, as pointed out above, the main reason of the TCAB rejecting the claim of the applicant is that it did not find the story of the applicant truthful.

16. There are no reasonably arguable grounds to support the intended judicial review and there is no realistic prospect of success. Leave to apply for judicial review is refused.” [sic]

Appeal to this Court

11.On 21 May 2020, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were that he would face hardship if he were to return to his home country, and that the Board had relied on unreliable, outdated or non-credible cases or sources of information and had engaged in groundless speculation.

12.On the same day, the Applicant agreed in writing that the appeal could be heard by two judges.

13.Pursuant to this Court’s directions of 1 September 2020, the applicant duly lodged his written skeleton submissions on 16 September 2020.  Those submissions consisted largely of general statements of law without identifying how they related to or were applicable to the present case.  At paragraph 2 of his submissions, the applicant raised the following arguments, which are more specific, but in relation to these arguments also, there were no supporting details or particulars:

“ 2. Alternatively, insofar as the Court considers that it was open to the Board to take into consideration the substantive merits of the Applicant’s appeal. For example:

(1) The Applicant’s appeal is a rehearing, and is not the same as an ordinary appeal in civil litigation. The Board erred in approaching the matter by simply trying to see whether he could ‘find fault with the decision of the Immigration Officer’. The Adjudicator’s failed to scrutinize the Director of Immigration and it is a general practice of the board to not question or find fault with the decision of the Director of Immigration.

(2) As part of the rehearing, the Board ought to have considered matters such as the country conditions of the Applicant’s country of origin.  The need to consider country conditions was made clear by the Court of Final Appeal in Secretary for Security v. Prabakar (2004) 7 HKCFAR 187, Yet the Board did not do so. ”

Legal principles

14.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  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 COI 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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 this Court 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 stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.The applicant did not in his Notice of Appeal, or in respect of the bulk of his submissions, provide any particulars in support of his arguments.  Neither did he identify any specific errors or potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

16.Raised here for the first time but not before, there was no basis for the applicant to raise the arguments at paragraph 2 of his submissions.  In any event, the Board appears to have made its own assessment of the applicant’s claim, afresh and without reference to the Director’s reasoning, and although it seems the Board did not consider country of origin information in its decision, it was strictly not necessary to do so in light of the Board’s findings on the unreliability of the applicant’s evidence and the absence of any real risk facing the applicant.  Those findings, we should add, formed the basis of the Board’s decision, and were squarely within the province of the Board; the court will not interfere with them unless they are reversible on public law grounds.

17.Insofar as it concerns the Judge, we would only examine his decision in light of the grounds that were advanced to reverse him.  But there are no such grounds.  No specific error by the Judge has been pointed out by the applicant.  Having considered the materials before us, we are in fact of the view that the Judge’s decision was fully justified.  He has applied the relevant legal principles correctly and we can no flaws in his overall analysis of the matter.  The Judge was plainly correct to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

18.For those reasons, we do not see any prospect of success in this appeal and the appeal is accordingly dismissed.

The applicant acting in person