Re Rizwan Muhammad

CACV 476/2020

[2021] HKCA 928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 476 OF 2020

(ON APPEAL FROM HCAL NO 1489 OF 2018)

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Before: Hon Barma JA and Linda Chan J in Court

Date of Hearing: 22 June 2021

Date of Judgment: 13 July 2021

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J U D G M E N T

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Hon Linda Chan J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 July 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 31 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 24 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan.  He entered Hong Kong in around October 2009 illegally and was arrested by the police in around January 2013.  He lodged a claim for non-refoulement protection on 3 September 2013. 

3.The applicant’s claim was based on threats from a group of gangsters in his home village arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [1] to [5] of the CALL-1 Form.

4.By a Notice of Decision dated 24 April 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 2 February 2018, the Board dismissed the appeal on 31 May 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [35] – [36] of the Board’s Decision, the Board held that there were concerns over the applicant’s credibility and that the applicant failed to establish a real risk of harm.  The Board considered that the applicant had not established any risks of harm from any of the proscribed risks and dismissed his claim for protection under all of the applicable grounds.

The judge’s decision

7.The applicant filed a form 86 on 27 July 2018 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application filed on 27 July 2018, the applicant advanced the following grounds for judicial review, as summarized by the judge at [10] of CALL-1 Form:

(1)  lack of legal representation in his appeal before the Board;

(2)  lack of legal assistance for not translating or interpreting the documents in the appeal bundle which were all in English for his appeal before the Board; and

(3)  failure on the part of the Director to schedule another screening interview for him after he missed the originally scheduled screening interview due to his sickness which is unfair to him.

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 [11] to [18] of the CALL-1 Form:

“11. For his complaint in Ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

12. The Applicant already had the benefit of legal representation in presenting his case to the Director, but chose not to testify or to answer any questions during his appeal hearing before the Board despite being advised to do so. As such I do not find anything amiss arising from the lack of legal representation in his appeal process or any basis for his complaint, and I do not find this ground reasonably arguable for his intended challenge.

13. As for his complaint under Ground (2) of not being provided with translation or interpretation of the documents in his appeal bundle before the Board, it is clear that many of the documents had earlier already been provided to his lawyer while he still had legal representation from DLS, while his NCF was completed on his instructions to his lawyer, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue over translation or interpretation. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

14. As for his complaint under Ground (3) that he was not provided any screening interview before the Director, as has been held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, there is no absolute entitlement to an oral hearing, as it is ultimately a question of fairness looking at the overall circumstances, and in the Applicant’s case, given the nature of his claimed fear of harm from those local gangsters over their land dispute, and the fact that he had provided his answers to the questions raised by the Director of his claim with the assistance of legal representation, and that he never raised any such issue during his appeal hearing before the Board when he in fact also declined to answer any questions from the adjudicator, I do not find any basis or merit in this complaint of his at all.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

16. The fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17. 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.

18. 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.In the Notice of Appeal filed on 16 September 2020, the applicant contended that:

“1. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age [sic] to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

2. The Applicant submits that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

3. The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that the applicant has failed to advice any credible evidence to prove material elements of his claim.

4. It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that to when he is in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

5. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.”

11.In his skeleton submissions filed on 3 May 2021, the applicant referred to a number of authorities on high standard of fairness and Wednesbury unreasonableness without explaining their relevance.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115 related to late filing of notice of appeal to the Board, again without explaining its relevance.

12.The applicant agreed by a letter of 16 September 2020 that the appeal could be heard by two judges.  We heard the appeal on 22 June 2021.

Discussion

13.In the notice of appeal and the written submissions, the applicant identified a number of grounds in relation to alleged errors on the part of the Director and the Board, but they do not relate to any error on the part of the judge.  Those grounds are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

14.The only ground of appeal which relates to an error on the part of the judge is that the judge failed to consider the error in relation to state acquiescence in the decisions by the Board and the Director.  The applicant did not give any particulars of this ground.  Further, this ground was never raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise this matter on appeal for the first time, which is well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 524, CAMP 54/2018 at §14(4)).  We would therefore give no weight to this ground.

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

The applicant appeared in person