Re Siddique Muhammad Irfan

CACV 191/2021

[2021] HKCA 1300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 191 OF 2021

(ON APPEAL FROM HCAL 1982/2018)

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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 To given on 16 April 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 9 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 23 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Pakistan. His latest entry to Hong Kong was in 2014 when he arrived illegally. He was arrested by the police on 22 April 2015. He lodged a claim for non-refoulement protection on 15 July 2015.

3.The applicant’s claim was based on threats from members of an opposing political party and the police in Pakistan. The details of the applicant’s claim have been summarised by the judge at [12] to [23] of the CALL-1 Form.

4.By a Notice of Decision dated 23 May 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 Board. After a hearing on 4 June 2018, the Board dismissed the appeal on 9 July 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [34] of the Board’s Decision, the Board found that there were a number of concerns regarding the applicant’s evidence and that there were doubts as to whether the applicant was a truthful witness. The Board did not accept that the applicant was targeted for his political affiliations or that he would face a real risk of harm upon his return.

The judge’s decision

7.The applicant filed a Form 86 on 19 September 2018 seeking to judicially review the Board’s Decision which contained no ground for seeking relief.

8.In his affirmation in support, the applicant claimed that the Board’s Decision was “unfair and unreasonable”.

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 [30] to [34] of the CALL-1 Form:

“30. The grounds of his application for judicial review as stated in his affirmation are that the Decision was unreasonable. He did not particularise. He repeated that his greatest fear is being harmed by members of the PML-N and PML-Q. He said he had documents to support his claim but was prevented from producing them because he was in jail and could not ask his family to obtain the documents and then because of COVID-19. The documents are medical reports in support of his injuries suffered during the attacks and police reports confirming his reports to the police.

31. These are lame excuses which are obviously untrue. According to his immigration history which he did not dispute, he was sentenced to 12 months’ imprisonment on 30 December 2015 in respect of the offence of using an identity card relating to another and was then discharged from prison on 23 September 2016 and released on court bail in relation to the other two outstanding offences pending his non-refoulement claims. He had not been in custody since 23 September 2016. In fact, the Commissioner of Police wrote to this court on 25 September 2020 enquiring the status of the Applicant’s application as he was due to report bail on 10 November 2020.

32. The true position is this. The Applicant was discharged from prison on 23 September 2016. He declined attending a screening interview schedule for him on 8 December 2016. Instead, he submitted the LoQ dated 11 January 2017 prepared by the Duty Lawyer Service on his behalf. He had the benefit of legal advice in presenting his claims. If he had any documents to support his claims, he should and would have referred to them in his LoQ. He did not. Then, he appealed to the Board on 2 June 2017. In his Notice of Appeal, he said:

‘… I have a false case against me in the Police. I want to show you some evidence. May a chance be given to me. I want to prove my case in the appeal.’

His concern then was the Pakistani police in Islamabad framing him up for drug trafficking charges. The Board conducting the hearing on 4 June 2018. He had all the time between 23 September 2016 and 4 June 2018 to obtain whatever documents he wished the Board to consider and produce to the Board. COVID-19 has not struck Hong Kong yet. There is no substance in his allegation that the hearing was unfair and the Decision was unreasonable because he was prevented from producing documents as he was in prison custody and because of COVID-19.

Disposition

33. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Conclusion

34. I have rigorously examined the Board’s Decision, the papers, grounds of application and the Applicant’s submissions. The Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM. The Board had regard to legal principles and practices and section 37ZD of the Immigration Ordinance in assessing the Applicant’s credibility. It took great care in analyzing the evidence. It set out its reasons why it considered the Applicant not credible in eight pages. It concluded that there was no factual basis to support the Applicant’s claim of fear and risk on which his claims for non-refoulement protection under the four applicable grounds are founded. I find the Decision of the Board was utterly without fault. There were no errors of law or irrationality in its Decision or procedural unfairness. I find no substance in the grounds of this application. Accordingly, the application is dismissed.”

Grounds for appeal

10.In the Notice of Appeal filed on 26 April 2021, the applicant stated that:

“My life is danger in my origin country that’s why I am requesting to court could you please save my life’s as a human being also I am requested to court I don’t have any legal represented could you please provide me legal represented. Bundle of thanks.”

11.In his affirmation of the same day filed in support of the appeal, the applicant exhibited the CALL-1 Form without giving any ground of appeal.

12.The applicant filed a written submission on 20 August 2021, where he submitted that:

(i) the Board failed to make sufficient enquiry with the Pakistani authorities before finalizing the decision;

(ii) the Board “[forgot] the real fear from Pakistan”;

(iii) the Board dismissed his appeal without any reason;

(iv) the Director and the court erred in holding that the violence to him was not severe enough to qualify as torture;

(v) the applicant would face great peril if he goes back to Pakistan; and

(vi) the applicant asks for legal and interpretation assistance from the duty lawyers service, but he has not yet been provided with such assistance.

Discussion

13.Although the applicant was duly notified of the hearing date by the Notice of Hearing dated 7 July 2021 and a further letter dated 23 August 2021, he failed to attend at the hearing of the appeal on 30 August 2021. We therefore deal with the appeal on the basis of the written materials.

14.The applicant asked that legal representation be given for his appeal. He also asked for assistance from the Duty Lawyer Service. The applicant should have made an application for representation to the Legal Aid Department and the Duty Lawyer Service, rather than to this court.

15.Notwithstanding the absence of legal representation for the applicant, we are of the view that the appeal may properly proceed with the applicant acting in person. This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15). Representation at later stages is merits based, and this is not procedurally unfair.

16.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.

17.The applicant submitted that the judge erred in holding that the violence towards him did not amount to torture. The judge did not in fact make such a finding and he was not required to do so for the reasons above. This ground is without merit.

18.As for the other grounds of appeal, including the alleged errors by the Board and the Director and the alleged danger to him upon his return, they do not relate to any error on the part of the judge and are therefore not viable grounds of appeal. We would accordingly dismiss these grounds.

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

The applicant, unrepresented, absent