Ahmed Sattar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 353/2020

[2021] HKCA 171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 353 OF 2020

(ON APPEAL FROM HCAL NO 504 OF 2018)

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J U D G M E N T

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

Introduction

1.On 3 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant 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 19 March 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 16 August 2017 rejecting the applicant’s non-refoulement claim.

2.On 11 August 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 illegally on 19 April 2015 and surrendered himself to the Immigration Department on 4 June 2015.  He was released on recognizance on 8 July 2015. The applicant lodged a non-refoulement claim on 19 October 2015. 

4.The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by his former girlfriend’s brothers who objected to their relationship. The factual background was succinctly summarized by the Judge in [2] – [10] of the Form CALL-1 ([2020] HKCFI 1677).

5.By notice of decision dated 16 August 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 16 January 2018, during which the applicant was interviewed by the Board.  The Board found that there was a lack of credibility on the applicant’s part and that there was no real risk of harm.  The Board was also satisfied that internal relocation was viable.  Thus the Board dismissed the applicant’s appeal on 19 March 2018 on all the applicable grounds.

Decision of the court below

7.On 28 March 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his affirmation in support of his Form 86, he stated that his political party had started dialogue with his opposite party, he needed time to resolve his problem before returning to his country, and that he was still suffering from pain and was seeing a doctor in Hong Kong due to having been assaulted by the opposite party.

8.Upon consideration of documents only, on 3 August 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [17] – [21] of the Form CALL-1 ([2020] HKCFI 1677, HCAL 504/2018) as follows:

“17. 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 the 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 Director of Immigration [2018] HKCA 524.

18. In the Applicant’s case, the Board rejected his claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in 51 – 68 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

19. Furthermore, 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.

20. 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.

21. 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.”

Appeal to this Court

9.On 11 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision. His grounds of appeal were that the Board disregarded his dangerous situation, and that because his screening interview with the Director took place in prison, he did not have time and was not able to provide anything to the court.

10.On the same day that he filed his Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

11.Pursuant to the Court’s directions of 17 December 2020, the applicant lodged his written submissions on appeal on 8 January 2021.  In those submissions, he argued that the Board’s determination of his claim was procedurally unfair because he was never provided with proper legal and language assistance.  The Board’s decision was never read back to him in his language; as such, the applicant argued that he did not thoroughly know how his claim was determined and thus it was not easy for him to appeal.  The applicant also submitted that there was procedural unfairness due to public policies of trying to dispose of non-refoulement claims as quickly as possible, and that such policies indicate a discriminatory attitude on the part of the authorities.  Nevertheless, in those submissions the applicant did not provide any details or particulars in support of his arguments. 

12.At the hearing before this court, he added that when he was interviewed by the Immigration Department, he was under pressure as he was in custody and he was ill (for which he had a medical certificate) and that he considered the interview process unfair.  However, what the court is concerned with is the decision of the Board, not the Immigration Department.  The hearing before the Board is a re-hearing, so whatever condition he was in when he was interviewed by the Immigration Department is not relevant.  In any event, at the hearing before the Board, he confirmed under oath that the contents of his Non-Refoulement Claim Form and answers to questions given in the screening interview were true and correct (see TCAB’s Decision [39]).   

Legal principles

13.In assessing the merit of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

14.As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision, or any other specific 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.  And apart from the matters set out in [12] above, he did not add anything else before this court.  In any event, it would be noted that the applicant had finished 12 years of schooling in Pakistan up to High School Class 12, and his alleged language difficulty was not a ground in his application for leave to judicially review the Board’s decision.

15.As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

16.It is insufficient for the applicant to argue that a lack of proper legal and language assistance resulted in procedural unfairness, without at least raising specific details as to where or how the Board or the Judge fell into error or were unfair or unreasonable.  The applicant has not raised such details; thus this argument is untenable.

17.The applicant was legally represented and provided with language assistance on his claim before the Director.  In any event, as this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403. 

18.In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the applicant’s credibility.  The Board also found that internal relocation was viable.  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. 

19.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge was plainly right to refuse leave. 

Order

20.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person