Re Hussain Sajjad

CACV 127/2021

[2021] HKCA 1299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 127 OF 2021

(ON APPEAL FROM HCAL 951/2018)

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Before: Hon Barma JA and G Lam JA in Court

Date of Hearing: 30 August 2021

Date of Judgment: 14 September 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 19 March 2021 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 18 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 2 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan. His claim for protection and immigration history have been summarized by the judge at [1] – [6] of CALL-1 Form:

“1. The Applicant is a 55-year-old national of Pakistan who last entered Hong Kong illegally in May 2015 and surrendered to the Immigration Department on 2 September 2015 and raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed for being caught in the election disputes between two rival politicians in his home district. He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in Daryah Badar, Baqam, Kotil Loharan, Sialkot, Pakistan. After leaving school, he got married, and in 1985 assisted a politician Chudhary in his local election campaign against his rival candidate Salman during which there were violent clashes between the supporters of the two rival politicians which caused the Applicant’s family to advise him to leave town to seek work elsewhere, which he did by moving to Sialkot, during which he heard that there were more violent clashes between the Chudhary and Salman which eventually led to the latter being killed by one of Chudhary’s supporters Saleem, but after Saleem was subsequently acquitted by the court, Salman’s son Rehan swore to take revenge against Saleem and his associates.

3. Sometime in September 2000 when the Applicant returned to his home district and greeted his old friends including Saleem during which he was seen by Rehan, and afterwards he was warned by his family that Rehan might think that he was part of Saleem’s gang and would then go after him as part of his revenge action against Saleem.

4. One afternoon in late October 2000 while he was on his way home on a motorbike, he ran into Rehan and his gang who started shooting at him with their guns but the Applicant managed to escape unharmed and went home, and when afterwards the police failed to take any action due to their doubting of his words, the Applicant decided to depart Pakistan to save his life, which he did on 31 October 2000 when he travelled to Hong Kong where he subsequently overstayed until 1 August 2007 when he surrendered to the Immigration Department and raised a torture claim, and after his claim was rejected, he was then repatriated to Pakistan in March 2012.

5. Upon his return to Pakistan, the Applicant one day in July 2012 ran into Rehan and his gang who then beat him badly and threw him into a canal, but he managed to survive and went into hiding, and in April 2013 he departed Pakistan for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection on the same basis as before, and for which he was granted legal representation from the Duty Lawyer Service (‘DLS’).

6. However, by a letter dated 1 March 2017 from DLS, the Applicant withdrew his non-refoulement claim which was accepted by the Immigration Department, but on 24 August 2017 he requested to re-open his claim and provided evidence of the threats from Rehan and his gang as mentioned above in support of his request.”

3.By a Notice of Decision dated 2 November 2017 (“the Director’s Decision”), the Director dismissed the request for re-opening of his non-refoulement claim.

4.The applicant appealed to the Board, for which he attended hearings on 23 February 2018 and 20 March 2018. The Board found that there were special circumstances that justified the re-opening of his non-refoulement claim. The Board held that the appeal should nonetheless be dismissed in its decision on 18 May 2018 (“Board’s Decision”).

5.At [34] of the Board’s Decision, the Board found that there were a number of inconsistencies between the applicant’s evidence at the oral hearing and his previous statements and answers lodged with the Immigration Department. The Board found that the applicant failed to establish any real risk of harm from the proscribed harms under consideration (i.e. the BOR 2 risk^[1], the BOR 3 risk^[2] and the persecution risk^[3]). The Board was also satisfied at [58] that state protection would be available for the applicant and at [59] that internal relocation would be viable.

The judge’s decision

6.The applicant filed a Form 86 on 28 May 2018 seeking to judicially review the Board’s Decision, which contained no ground for seeking relief.

7.In his affirmation in support of the leave application filed on 28 May 2018, the applicant deposed that:

“[the Director] did not consider under humanity bases. My life is under threat by the Sunni sect and Pakistan government (police)”

8.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 [13] to [16] of the CALL-1 Form:

“13. 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.

14. In the Applicant’s case, 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 his 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.

15. In the premises and having considered the decision of the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in its process or its decision, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

16. 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

9.In the Notice of Appeal filed on 25 March 2021, the applicant identified a number of alleged errors by the Board and the Director, which for the reasons given below do not require to be discussed in detail. As for the judge’s decision in the CALL-1 Form, the applicant stated that:

“The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age 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.

…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.”

10.In his skeleton submissions lodged on 13 July 2021, the applicant submitted that the Board failed to properly assess his credibility. He also cited section 37ZT of the Immigration Ordinance, Cap 115 and a number of public law cases in Hong Kong and the UK without explaining their relevance to the appeal.

11.We heard the appeal on 30 August 2021. The applicant appeared at the hearing and made oral submissions in which he elaborated on the ill treatment he claimed to have suffered.

Discussion

12.This court has held on many occasions that an application for judicial review is not a further appeal from the decision sought to be reviewed, and requires the applicant to establish some public law error on the part of the decision maker. On an appeal against a refusal of leave to bring judicial review proceedings, it is necessary to identify errors by the judge in the court below, as an appeal to the Court of Appeal is not to be treated as a fresh application for judicial review. We have therefore not given any weight to the grounds pertaining to alleged errors by the Director and the Board.

13.As for the ground based on the alleged failure by the judge to take into account the lack of consideration of state acquiescence in the Director’s Decision, that decision has been overtaken by the Board’s Decision for the purpose of the application for judicial review. Further, this complaint was never raised in the Form 86. This ground is therefore completely without merit.

14.The oral submissions by the applicant do not amount to viable grounds of appeal, for the reasons given in [12] above.

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

The applicant appeared in person