Sultan Sabir v. Torture Claims Appeal Board/ Non-refoulement Claims Petiton Office

CACV 361/2021

[2021] HKCA 1557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 361 OF 2021

(ON APPEAL FROM HCAL 2718 OF 2018)

____________________

____________________

Before:  Hon Chow JA and ST Poon J in Court

Date of Written Submissions: 8 September 2021

Date of Hearing:  25 October 2021

Date of Judgment:  1 November 2021

____________________

JUDGMENT

____________________

Hon Chow JA (giving the Judgment of the Court):

1.This is an appeal against the order of Deputy High Court Judge To (“the Judge”) dated 19 July 2021 refusing to grant leave to the Applicant 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 16 November 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 5 February 2018 rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Pakistan.  He surrendered to the Immigration Department on 29 January 2016 after claiming he had sneaked into Hong Kong from the Mainland on 22 January 2016.  He lodged a non-refoulement claim on 3 November 2016.

3.The Applicant claimed that if refouled to Pakistan, he would be at risk of being harmed or killed by his paternal uncle and cousin over a property dispute.  Details of the Applicant’s claim have been summarised by the Judge at §§5-11 of the CALL-1 Form.

4.By a Notice of Decision dated 5 February 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.The Applicant appealed the Director’s Decision to the Board.  On 12 October 2018, the Board heard the appeal.

6.On 16 November 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board found inconsistencies and contradictions in the statements and evidence of the Applicant (see Board’s Decision at §§50-56), and found that the Applicant had failed to establish any real risk of persecution (§§60-64), BOR 3 risk (§§65-66), BOR 2 risk (§§67-68), and torture risk (§§69-70) should he return to Pakistan.

THE JUDGE’S DECISION

7.On 30 November 2018, the Applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review of, inter alia, the Board’s Decision.

8.The Applicant complained that he was not provided with language and legal assistance after the interview before the immigration officer.  However, the Judge, referring to Karamjit Singh (CACV 78/2018), considered that the high standard of fairness in the assessment of a non-refoulement claim did not require provision of interpretation service at any time an applicant desired or required.  Further, the Judge considered that the Applicant’s complaint about lack of translation of the Board’s Decision was frivolous, because it was made after an oral hearing during which the Applicant had the benefit of interpretation services, and a translation of the Board’s Decision on the appeal which had already been made could not change the outcome of the appeal (see Form CALL-1 under the sub-heading “Lack of language and legal assistance”).

9.The Judge also considered the Applicant’s complaint that the Board acted in an unfair manner (in that it made a template decision and did not explain how it balanced conflicting information in the COI) to be misconceived because the basic premise underlying the Board’s Decision was the Applicant’s refusal to answer questions to resolve the conflicts and discrepancies in his evidence so as to establish his credibility and the credibility of his case (§§19-20).

10.The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny (§22).  The Judge was satisfied that the Board had correctly set out the law and key legal principles and observed a very high standard of fairness (§22).  The Judge did not find any error of law or procedural unfairness in the Board’s Decision, or any evidence showing any prospect of success in the Applicant’s intended application for judicial review (§§22-23).

11.Accordingly, on 19 July 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.

THIS APPEAL

12.In his Notice of Appeal dated 22 July 2021, the Applicant alleged that the Judge failed to provide reasons and his observations were copied from the Board’s Decision.  However, the Applicant did not point to any error in the Judge’s decision or reasoning.

13.In his written submissions dated 8 September 2021, the Applicant alleged that he was from India and that if he returned to India, he would be harmed or killed because of his Muslim faith.  It may be noted, however, that in his affirmation dated 30 November 2018 filed in the proceedings below, the Applicant claimed that he was a Pakistani national (§4), and that his life would be in danger should he return to Pakistan (§26).  Also, the Applicant’s non-refoulement claim was based on an alleged fear of harm from his uncle and cousin in Pakistan over a property dispute.

14.At the hearing of this appeal on 25 October 2021, the Applicant stated that the allegations in his written submissions were “mistakes” made by his friend.  He also claimed that (i) about 2 months ago, his cousin fired shots at his sister’s home, and was wanted by the police, and (ii) his cousin was still asking the Applicant’s friends in India about the Applicant’s current whereabouts.

DISCUSSION

15.In non-refoulement case, the Court will not intervene by way of judicial review unless it is shown that there are errors of law, or procedural unfairness, or irrationality in the decision of the Board. The assessment of evidence, risk of harm, state protection, and viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1)).

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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

17.The Court of Appeal would only reverse the judge’s decision if an applicant can demonstrate that the judge has made errors of law or failed to take account of relevant matters already placed before the Court, or his decision is otherwise plainly wrong (see Re Iqbal Parvaiz [2020] HKCA 76 at §7.1).

18.The Applicant has failed to identify any errors of law or failure by the Judge to take into account relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.

19.For the reasons above, the present appeal has no merits and is dismissed.

The Applicant, unrepresented, appeared in person

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

[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] 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.