Re Ali Wajid

CACV 327/2020

[2021] HKCA 1238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 327 OF 2020

(ON APPEAL FROM HCAL NO. 514 of 2018)

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Before:  Hon Chu JA and Mimmie Chan J in Court

Date of Judgment:  27 August 2021

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

Introduction

1.This is the applicant’s appeal against the decision of Deputy High Court Bruno Chan (“the Judge”) given on 28 July 2020^[1] refusing him leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 6 March 2018 which dismissed his appeal against the decision of the Director of Immigration (“the Director”) of 20 July 2017 rejecting his non‑refoulement protection claim.  

2.The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.The appeal is dealt with on paper without a hearing due to the non-compliance with the direction on the lodging of a skeleton argument as mentioned below. 

The applicant’s non-refoulement claim

4.The applicant is a national of Pakistan of 34 years old.  He entered Hong Kong illegally and was arrested by the police on 14 December 2007.  He raised a torture claim which was assessed as a non‑refoulement claim upon the commencement of the unified screening mechanism on 3 March 2014.

5.The applicant’s claim was set out in detail in the Director’s first decision at [10] and the Board’s decision at [35] to [45] and summarized by the Judge at [2] to [10] of Form CALL-1.  The applicant’s claim is based on his fear of being harmed or killed by his uncle and cousins, their associates and professional killer hired by them due to a family dispute, and also the family of his wife because she ran away home to marry the applicant. 

6.In gist, the applicant claims that there is a longstanding dispute over some property between his uncle’s family and his family.  In October 2001 after an attack by his uncle and followers on his parents, the applicant shot and wounded his uncle.  He fled to Karachi until early 2007.  In April 2007, he ran into his uncle and his followers who attacked him.  In the course of the incident, the applicant fired a shot at his cousin.  Fearing for his safety, the applicant went to Mainland China from where he entered Hong Kong illegally.  In November 2007, the applicant was involved in a fighting incident.  He claimed that the person he wounded was a professional killer sent by his uncle to kill him.  He was later convicted of wounding and sentenced to 35 months’ imprisonment.  After he was discharged from prison and while he was waiting for the determination of his claim, he came to know his present wife through the internet.  She later ran away from home and joined the applicant in Hong Kong.  They have since got married, despite her family’s objection. 

The Director’s decision

7.By his decision dated 20 July 2017, the Director rejected the applicant’s non-refoulement claim on the torture risk^[2], BOR 3 risk^[3], persecution risk^[4] and BOR 2 risk^[5] grounds.  The Director found that the claim lacks credence due to the existence of significant inconsistencies.  The Director further considered that, even if the claim was true, the risk of harm from the applicant’s perceived enemies was low, which was further negated by the availability of internal relocation.  The Director was also of the view that the applicant’s problem was a personal dispute and did not involve any state official or authority.  The Director concluded that the applicant failed to establish his entitlement on any of the applicable grounds.            

The Board’s decision

8.The applicant appealed the Director’s decision to the Board.  The Board heard the appeal on 8 February 2018, during which the applicant gave evidence and answered questions from the Board. 

9.By its decision dated 6 March 2018, the Board dismissed the appeal.  The Board had many concerns over the credibility of the applicant and his case on alleged risks of harm from his uncle, cousins and the professional killer.  The Board found the evidence to be inconsistent and implausible and was not satisfied that the applicant would face any real risk of harm if he should return.  The Board concluded that the applicant failed to establish his claim under any of the applicable grounds.        

The intended judicial review

10.The applicant filed a Form 86 and an affirmation on 28 March 2018 to seek leave to apply for judicial review against the decision of the Board.  He did not put forward any ground for seeking relief.  He only stated in his affirmation that he wanted to judicially review the decision because it was unfair. 

The Judge’s decision

11.The applicant did not request an oral hearing before the Judge, who dealt with the leave application on the papers.  By his decision dated 28 July 2020, the Judge held that the intended judicial review has no reasonable prospect of success and refused to give leave to the applicant to apply for judicial review.  His reasons were set out at [16] to [19] of the Form CALL-1 as follows:

“16. 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.

17. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 101 – 199 of its decision with the benefit of hearing his oral evidence and 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.

18. Furthermore, 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, which was also confirmed by the Board in its decision, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19. 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 grounds of appeal

12.On 6 August 2020, the applicant filed a Notice of Appeal to appeal the decision of the Judge.  The Notice of Appeal does not include any ground of appeal.  The applicant filed a Supplemental Notice of Appeal dated 29 March 2021, in which he stated that he could not go back to his home country because he had shot and wounded his uncle, after seeing his parents being injured by his uncle.   

Non-compliance with order to lodge skeleton argument

13.Directions were given by the Registrar of Civil Appeals on 28 April 2021 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and to elect to have the appeal disposed of on paper.  The directions were communicated to the applicant by the court’s letter dated 29 April 2021.

14.The appeal was scheduled to be heard on 20 July 2021.  In the Notice of Hearing dated 17 May 2021, the applicant was reminded to lodge his skeleton argument by 22 June 2021 and was further told that should he fail to do so he would be deemed to waive his right to have an oral hearing, and the hearing date would be vacated with the application determined on paper.

15.The applicant failed to lodge a skeleton argument on or before 22 June 2021.  The hearing date was accordingly vacated.  By letter dated 29 June 2021, the court informed the applicant that the hearing date of 20 July 2021 was vacated and that this appeal will be dealt with on paper by the Court of Appeal.    

Legal Principles

16.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.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. Assessment of the evidence, of country of origin information materials and risks of harm, the availability of state protection and the viability of internal relocation are primarily within the province of the primary decision makers. 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, and/or in the process by which the decision was made.

18.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 decision of 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 was a fresh application for judicial review. 

Our reasons for decision

19.The matters put forward by the applicant in his Supplemental Notice of Appeal show no viable grounds to reverse the Judge’s decision.  As pointed out above, it is not the task of the Court to conduct a fresh assessment of his claim.  Assessment of credibility and risks of harm are within the province of the primary decision makers.  Further and importantly, in light of the Board’s rejection of the applicant’s case and evidence, there is no credible evidence which can support the applicant’s claim for non-refoulement protection.  

20.We have examined the decisions of the Director and the Board, and do not discern any errors of law or procedural unfairness or irrationality in the decision of the Board.  We agree with the Judge that the applicant’s intended judicial review has no prospect of success.  The applicant has also not point to any error in the Judge’s reasons and decision.

21.For the above reasons, there is no merit in the applicant’s appeal.  We therefore dismiss the appeal. 

The applicant, unrepresented, acted in person.