Re Hussain Sada

CACV 258/2020

[2020] HKCA 1083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 258 OF 2020

(ON APPEAL FROM HCAL NO. 1036 OF 2018)

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J U D G M E N T

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Hon Yeung 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”) dated 2 July 2020 in HCAL 1036/2018 refusing the application of the applicant for leave to apply for a judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 25 May 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 17 August 2017.

2.The applicant did not appear on the day of the hearing, claiming, over the telephone, that he had not received the notice of hearing which had been sent to his given address.  The Court decided to deal with his appeal in absentia. 

Background

3.The applicant is a national of Pakistan who entered Hong Kong illegally on 16 February 2016 and was arrested by the police on the same day.  He was then referred to the Immigration Department for investigation and on 20 February 2016, he raised a non-refoulement claim by way of written representation on the basis that if he were to return to Pakistan he would be harmed or even killed by a local rival religious leader in his home village over certain religious dispute.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1318. 

4.By the Notice of Decision dated 17 August 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 4 May 2018, the Board dismissed the appeal on 25 May 2018.  In its decision, the Board found the applicant’s account of events incredible as he had no previous encounter with the rival Deobandi religious group and it was illogical that the Deobandi group would suddenly attack the applicant between December 2015 and early 2016 given his young age and low position among the Shia Muslims in his home village.  In any event, he would have the option of internal relocation to other places in Pakistan such as Gujranwala where he used to live and work safely.  For the aforesaid reasons, the Board concluded that the applicant had failed to substantiate his non-refoulement claim on all applicable grounds.

The Judge’s decision

6.On 6 June 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decisions of the Director and the Board and as summarised by the Judge in [14] of his decision, the applicant advanced the following grounds for his intended challenges:

(1)  the Director failed to appreciate or give proper weight to the presence of state acquiescence in the applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2)  the Director failed to take into account the fact that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as the direct result of misconduct of the police;

(3)  the Director failed to take into account the argument that the state would be rendered liable to the applicant by cause of the state and its public officials in failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)  the Director failed to consider or give sufficient weight in those relevant COI that support the applicant’s case that the police in Pakistan would not be able to protect its citizens;

(5)  the Director just relied on COI that suited his pre-conceived conclusion and was therefore a clear case of unfair attitude that should render his decision void;

(6)  the Director failed to take into account the fact that corruption and incompetency in Pakistan is still a very serious problem as evidenced by the human rights reports;

(7)  the Director failed to attain high standards of fairness required by the Wednesbury test in his decision that his decision is thereby considered as unreasonable in the scope of public law;

(8)  the adjudicator failed to make sufficient enquiries before finalizing the determination; and

(9)  the adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence in support of his non-refoulement claim and his appeal.     

7.The Judge heard the application on 9 August 2019 and by the CALL-1 Form of 2 July 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [15] – [18] of the CALL-1 Form:

“15.  These 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 applied to his case or how the Director or the adjudicator had erred in their decisions,or in what way was state acquiescence relevant to his claim, or how did they fail to make sufficient inquiry or to take into account relevant COI or being selective or improperly relyon irrelevant COI, or in what way did the adjudicator fail to give him sufficient opportunity to produce evidence to support his claim or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and at his hearing before the Board he was able to present and articulate his case fully with the assistance of an interpreter during which he never made any request for further time or opportunity to produce additional evidence for his claim.  In the circumstances there is simply no basis or merit in these complaints of the Applicant, nor do I find any of them reasonably arguable for his intended challenge.

16.  As has been repeatedly emphasized by the Court of Appeal, 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.  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.

18.  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.”

The Appeal

8.On 13 July 2020 , the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal is as follows:

“I am not satisfied with the decision because it’s away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.”

9.In compliance with the direction given by Master Tsui on 15 October 2020, the applicant lodged his written submissions on 20 November 2020.  In his written submissions, he advanced the following:

(1)  His life will become worse if refouled and he was not satisfied with all the decisions made in his case.

(2)  The points in his case was ignored and the decisions were not transparent.  The situation of his country is much different as the decision-makers might think and it is hard for him to live and stand in front of his enemies.

(3)  He was playing into the hands of Pakistani police and other law making authorities as they are using their political influence for which he does not have strength to fight against.

(4)  Any person who tries to stand or be a witness against the police and the law making authorities may disappear or be killed.

(5)  It is difficult to get justice in the corrupt environment unless one is rich and politically powerful.

(6)  He is living under the threat of his enemies and he did not know when his enemies would come to him.

(7)  Torture and deaths are common in police custody in Pakistan and the police would just give support to those who bribe them.

(8)  It is impossible for him to go back to work and even if he files a report to the police, the police would just inform those powerful people of the same.

(9)  He urged the court to understand his problem and allow him to stay in Hong Kong

General Principles

10.Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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

11.With the aforesaid legal principles in mind, this Court would focus on the correctness of the Judge’s decision and hence it is incumbent upon the applicant to identify proper grounds to justify our interference with the Judge’s decision.  In the present case, the applicant did not provide any particulars or any discernible grounds for reversing the Judge’s decision in his Notice of Appeal or his written submissions.  General assertions without particulars cannot be effective grounds to support a judicial review application: see Re Mizan Sikder [2019] HKCA 20 and Re Aziz Nasir [2019] HKCA 578. 

12.Having read the Board’s decision, we take the view that the Board had carefully considered the applicant’s case and it was perfectly open for the Board to come to the conclusion that the applicant’s story lacked logic and credibility, as in the absence of any previous involvement on the part of the applicant with the rival religious group and given his young age and minor status in his home village, it was unreasonable and unlikely that the rival group had attacked or threatened the applicant before he fled from Pakistan.   

13.The matters raised by the applicant in this appeal are only his assertions without concrete factual evidence supporting the same.

14.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, acting in person, absent.

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.