Re Salah Uddin

CACV 281/2021

[2021] HKCA 1482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 281 OF 2021

(ON APPEAL FROM HCAL NO. 1041 of 2018)

__________________________

__________________________

Before: Hon Chu and M Poon JJA in Court

Date of Judgment: 11 October 2021

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 21 May 2021[1] refusing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 21 May 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 18 September 2015 and 15 December 2016 rejecting his non-refoulement claim.

2.The applicant has consented to the appeal being dealt with on the papers without an oral hearing.

3.The applicant is a national of Pakistan aged 57. He entered Hong Kong on 22 October 2002 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 6 June 2007 in connection with a criminal case.  On 17 March 2009, he raised a torture claim which was taken as a non-refoulement claim at the commencement of the Unified Screening Mechanism in 2014.

4.The applicant’s claim is based on fear of being harmed or killed by people of the Shia sect because he had witnessed a shooting incident involving Shia attackers.  His claim was set out in detail in the Director’s first decision at [12] and the Board’s decision at [8] to [26], and summarised by the Judge in [1] to [5] of the Form CALL-1. 

5.In gist, the applicant claims that in mid-2001, he witnessed a shooting incident during which four armed Shia attackers fired at the people in a Mosque killing nine people, including the Imam, and seriously injuring 12 people.  After he made a statement to the police, he received threats on his phone and was kidnapped, beaten and was given injections.  He managed to escape and eventually with the help of a friend obtained a passport and came to Hong Kong through Guangzhou.       

6.By his decision dated 18 September 2015, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3] and BOR 3risk^[4] grounds.   

7.The applicant appealed the Director’s decision to the Board.  In the meantime, the Director issued his further decision dated 15 December 2016 which assessed the applicant’s claim under the BOR 2 risk^[5] ground and decided against it.

8.The Board heard the applicant’s appeal at two oral hearings held on 7 October 2016 and 24 February 2017 during which the applicant, who was accompanied by his lawyer assigned by the Duty Lawyer Scheme, gave evidence and answered questions from the Board.  By its decision dated 21 May 2018, the Board dismissed the appeal.  In summary, the Board doubted the credibility of the applicant and his claim having regard to the contradictions between his oral evidence and the information he provided to the Director.  The Board also considered that, even if the applicant’s claim was accepted, the level of risk of harm was low in light of the long lapse of time and the conclusion of the investigation into the shooting incident with no one being prosecuted.  The Board was further of the view that state protection and internal relocation are reasonably available which would reduce or negate any risk of harm.  The Board concluded that the applicant failed to make out a case for non-refoulement protection under all applicable grounds. 

9.On 8 June 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He did not give any ground for seeking relief in the Form 86 and his supporting affirmation.

10.The Judge dealt with the application at an oral hearing attended by the applicant.  For reasons set out in [11] to [15] of the Form CALL-1, the Judge refused to give leave for applying judicial review and dismissed the application:

“11. On 8 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation as well as at the hearing of his application that he merely repeated his claim as before that his life would still be in danger in his home country that he cannot go back but without putting forward any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

12. 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 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 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 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.

13. 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 parts 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.

14. 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.

15. 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.”

11.The applicant filed the notice of appeal on 28 May 2021, in which the applicant stated that the decision was “away” from the facts and reality relating to his case; and there was no transparency in the decision.

12.In his written submission, the applicant stated the following as his grounds of appeal:

(1)  Many things relating to his case were ignored and the decision was not transparent.  The real situation in his country is very different from what people think

(2)  Torture and deaths of people held in police custody are common.  The YouTube and internet have many examples of people like him who had been badly treated.  It was no use to complain to police because the powerful people will exert their political influence on the police and the other law making authorities.  It is very difficult to get justice in a corrupt environment.

(3)  People are helping him to solve his problem and he asked to be allowed to stay in Hong Kong until the problem is settled.

13.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].

14.The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

15.The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 the process by which the decision was made.

16.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 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 is a fresh application for judicial review.

17.In light of the established legal principles set out above, we are of the view that the arguments put forward by the applicant do not constitute viable grounds of appeal. 

18.Firstly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to specific errors in the reasons and decision of the judge.  In the present case, the applicant did not provide any ground in support of his intended judicial review application.  The Judge concluded there is no basis to interfere with the Board’s decision.  None of the arguments he puts forward in this appeal has addressed the Judge’s decision or the reasons he gave for the decision.  In the circumstances, there is no proper basis for this court to interfere with the Judge’s refusal of the application.     

19.Secondly, the matters now raised by the applicant relate to evaluation of risk of harm and country-of-origin information.  They are matters for the Director and the Board, who are the primary decision makers.  The Court may only review the findings made by the primary decision makers if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness.  The applicant has not advanced any substantive ground to challenge the findings of the Board.  In particular, the Board had rejected the factual basis of the applicant’s harm; hence his assertion of risks of harm on return to his country has no factual foundation to stand on.

20.In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions. We agree with the Judge that the intended judicial review has no reasonable prospect of success and that leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.

[1] [2021] HKCFI 1447.

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[5] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.