Re Ghani Muhammad Usman

CACV 572/2020

[2021] HKCA 695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 572 OF 2020

(ON APPEAL FROM HCAL 1329/2018)

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Before:  Hon Barma JA and Lisa Wong J in Court

Date of Hearing: 10 May 2021

Date of Judgment:  21 May 2021

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the court):

1.This is an appeal against the decision of Deputy High court Judge Bruno Chan given on 21 May 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 25 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 28 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong illegally in early 2008 and filed a torture claim on 1 March 2008 which was dismissed on 26 April 2012.  The petition against the refusal of his torture claim was dismissed on 5 July 2012.  He was deported to Pakistan on 28 August 2012 after serving his sentence.  The applicant entered Hong Kong illegally again on 29 March 2016.  He lodged a non-refoulement claim on 29 June 2016.

3.The applicant’s claim was based on threats from a man known as Waseem, who proposed to marry one of the applicant’s sisters but was rejected. There were also disputes with Waseem in respect of property owned by the applicant and his family.  The details of the applicant’s claim have been summarised by the judge at [2] to [9] of the CALL-1 Form.

4.By a Notice of Decision dated 28 November 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 8 May 2018, the Board dismissed the appeal on 25 June 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.The Board largely accepted the case of the applicant and found that he may be attacked by Waseem upon his return.  However, the Board was satisfied at [77] that state protection would be available for the applicant and at [79] that internal relocation would be viable and therefore dismissed his claim.

The judge’s decision

7.The applicant filed a Form 86 on 9 July 2018 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application dated 9 July 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [14] of CALL-1 Form:

(1)  that the Director had merely adopted a formulaic and biased approach in assessing his claim;

(2)  that the Director failed to properly and objectively consider the relevant COI on the overall condition of Pakistan including the ineffectiveness of the police and their corruption in assessing his claim;

(3)  that the Board’s decision had never been read or translated to him which is procedurally unfair; and

(4)  that it was wrong for the Board to find that state protection was available to the applicant when his personal experience had showed it not to be the case.

9.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [15] to [19] of the CALL-1 Form:

“15. These are however all very broad and vague assertions of the Applicant containing several pages of 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 Board had erred in their decisions, or in what way did the Director fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was wrong for the Board to find that state protection was available on the basis of the relevant COI, or how the fact that the Board’s decision was not translated to the Applicant be a valid ground to challenge its finding or decision. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and that none of which are reasonably arguable for his intended application, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the findings of the Director or the Board either.

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

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.

19. 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.”

Grounds for appeal

10.The applicant was late in filing the Notice of Appeal.  The judge considered the explanation offered by the applicant, the situation of the general postal service and the High Court Registry in the light of the prevailing public health situation.  On 15 October 2020, the judge granted extension of time to file his Notice of Appeal.

11.In the Notice of Appeal dated 23 October 2020, the applicant contended that:

“… [the judge] could not show any real cause. To get justice I have right to appeal.”

12.In his skeleton submissions dated 8 April 2021, the applicant explained why it is unsafe for him to return.  He claimed that the court should not dismiss his appeal or send him back to Pakistan, where he will be killed.

13.The applicant agreed by a letter of 23 October 2020 that the appeal could be heard by two judges.  We heard the appeal on 10 May 2021.

Discussion

14.The applicant claimed that the judge did not show any real cause for dismissing his leave application but he did not identify any matter said to have been ignored by the judge.  We have considered the reasons given by the judge at [15] – [19] of CALL-1 Form and we do not accept that there was any error in the judge’s reasons.  This ground is without merit.

15.As for the ground based on the alleged danger upon his return, the Board has already held that state protection is available and internal relocation is viable.  The applicant failed to substantiate any public law error in these findings by the Board.  This ground is also without merit.

16.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant appeared in person