Re Muhammad Asir

CACV 240/2020

[2020] HKCA 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2020

(ON APPEAL FROM HCAL NO 1795 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of K.W. Lung (“the Judge”) on 30 June 2020 in HCAL 1795/2018 refusing leave to the applicant to apply for judicial review.  By that decision, the Judge refused his application for 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 17 August 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 14 December 2017.

Background

2.The applicant is a Pakistani national. He came to Hong Kong illegally by boat from China on 26 October 2015. He was arrested by police on 27 October 2015 and was referred to the Immigration Department on 28 October 2015.  He lodged a non‑refoulement claim on 29 October 2015 by way of written representation on the basis that if he were to return to Pakistan, he would be harmed or even killed by his paternal uncle, Sabir Khan because of a land dispute. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1376. 

3.By the Notice of Decision dated 14 December 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 23 April 2018, the Board dismissed the appeal on 17 August 2018.  For the reasons stated in [44] to [53] of the decision, the Board had serious doubts about the credibility of the applicant’s claim as his evidence was inconsistent as to the size and ownership of the land in dispute, how his uncle handled his own piece of land and if his cousins were present when he was attacked by his uncle. The Board did not accept the fundamental basis of the applicant’s claim that he had a land dispute with his uncle nor he would face any form of harm upon his return to his home country.  For the aforesaid reasons, the Board was not satisfied that the applicant is at risk on any of the applicable grounds and his appeal was dismissed.

The Judge’s decision

5.On 31 August 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decision of the Board.  In his supporting affirmation, as summarized by the Judge at [10] of the CALL-1 Form, he advanced the following grounds for his intended challenge:

(1)  No reasonable basis rejecting his evidence.

(2)  Failure to consider extended state acquiescence.

(3)  Failure to consider the Country of Origin Information in assessing the risk.

(4)  Irregularity of the decision maker.

(5)  Failure to place weight on relevant information or selective placing weight on irrelevant information.

(6)  Failure to consider a consistent system of human right violations.

(7)  Irregularity (placing weight on irrelevant matters, or on inaccurate or incorrect facts.

(8)  Procedural impropriety (failure to call psychological and/or psychiatric reports and/or evaluations).

(9)  Procedural impropriety (apply the incorrect standard of proof).

(10)  No proper basis for consideration of internal relocation.

6.The Judge heard the case on 16 August 2019 and by the CALL-1 Form of 30 June 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 [11] to [16] of the CALL-1 Form:

“11.   The applicant appeared before me and he confirmed that he was able to speak freely and tell his stories fully to the immigration officer and the Adjudicator. He understood the hearing bundle, the Director’s Decision and the Board’s Decision.

12.    I put the Board’s findings above to him and ask him if he had any comments on them. He said that he had no comments.

13.    It is obvious that the Board, having considered his evidence and for the reasons given in the Board’s Decision, rejected his evidence as to the fact in support of his claim. He has no factual basis for his application.

14.    Grounds (1), (4), (5), (7), (9) and (10) are his opinions without any evidence in support of them.

15.   Grounds (2), (3) (6) and (8) are irrelevant to the issues for the Board’s consideration, given the Board having found that the applicant had fabricated his case. They fail.

16.    The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

The Appeal

7.On 3 July 2020 , the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal is as follows:

“Judges are unfair to examine the decision of TCAB and NOD because there was signification that the judges did not obtain it from decision of TCAB. I accepted that the Board gave me freedom to say everything what I want and what happened to me in Pakistan. But the Board knows the performance of our country police and other department. I accepted that state government is available but just for rich peoples in media only. My opponents are very well known and rich man. Main point he has connection with police departments.”

8.In compliance with the direction given by Master Tsui on 15 October 2020, the applicant lodged his written submissions on 27 October 2020.  In his written submissions, he advanced the following:

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirements.

(2)  The Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or were the result of procedural errors or unfairness.

(3)  The Board had failed to apply the high standard of fairness owed to a self-represented claimant by failing to provide hearing bundle with translation earlier; relying on sources of news that were not officially recognized or were hearsay or were outdated thereby resulting in groundless speculation that he would be safe to return home.

(4)  The Director had failed to consider the concept of extended acquiescence.

(5)  He claimed that if he were to return to his home country, he would be harmed or killed and the government cannot protect him.

(6)  He had made many written submissions but “nothing work”.  He did not have written proof for his case and reinstated his enemies had connection with the police and were powerful.

(7)  He agreed that the Board allowed him to talk freely and provided an interpreter to help him but he was not satisfied with its decision. The Judge did not allow him to talk about the Board’s decision and only asked his name and address. He admitted that he knew nothing about judicial review and his legal application was rejected.

9.We heard the appeal on 22 December 2020.  The applicant had nothing further to say. 

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.The applicant did not identify any error of law in the Judge’s decision in his grounds of appeal.  His complaint that the Judge did not allow him to talk about the Board’s decision at the hearing was without basis and untrue.  Firstly, as stated at [1] of the CALL-1 Form, the applicant did not request for an oral hearing in the first place and in order to ensure the applicant understand the purpose of judicial review, the Judge invited the applicant for an oral hearing so that he could explain the same to the applicant and see if there were any further grounds in support of the application.  Secondly, at the oral hearing on 14 November 2019, the Judge, as clearly set out in [11] and [12] of the CALL-1 Form, confirmed with the applicant if he understood the hearing bundle, the Director’s and the Board’s decisions.  The Judge then put the Board’s findings to the applicant and asked him if had had any comments on them and the applicant said no. In view of the aforesaid, the applicant’s complaint simply cannot stand.

12.Regarding the applicant’s grounds of appeal against the Board’s and the Director’s decisions, they are general assertions without particulars and they 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.

13.After our careful reading of the Board’s decision, it rejected the applicant’s claims for non-refoulement protection primarily based on its assessment that the applicant’s evidence was full of inconsistencies and unreliable and therefore it was not accepted that there was any real or substantial risk of harm if he were to be refouled to Pakistan.  Such findings are within the province of the Board, and the Court will not interfere with such assessments unless they are reversible on public law grounds which we found none in this case. 

14.We are also satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny and his decision is without flaw.

15.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

[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.