Re Re Muhammad Nasir

CACV 67/2022

[2022] HKCA 896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2022

(ON APPEAL FROM HCAL NO. 257 of 2019)

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J U D G M E N T

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Hon Barnes J (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge To (“Judge”)  on 25 January 2022[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 18 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 12 June 2018 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a Pakistani national.  He has come to Hong Kong under different names and overstayed in 1993 and 1996.  On both occasions he was arrested and repatriated to Pakistan after serving sentence.  He last arrived in Hong Kong on 11 June 2003 under the name of Muhammad Nasir, and was permitted to remain as a visitor until 18 June 2003.  He did not depart, and overstayed again.  The applicant was arrested by police on 3 November 2009.  He first lodged a torture claim which the Director rejected on 9 May 2011, and on 7 September 2011 the Board denied the appeal against the rejection of the torture claim.  The applicant raised his current non-refoulement claim under the Unified Screening Mechanism on 11 July 2013. 

3.The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed or even killed by the perpetrators or their associates of the murder of his own brother and his cousin in July 1993, due to the applicant having witnessed the murders and sustained an injury from that incident as well as reporting the attackers to the police.  The factual background was summarized at paragraphs 18 to 20 of the Board’s decision.

4.By notice of decision dated 12 June 2018, the Director assessed the applicant’s claim on all applicable grounds except torture risk[2] (already decided)  and determined against him.  Those applicable grounds are BOR 3 risk[3], persecution risk[4], and BOR 2 risk[5].

5.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 27 December 2018, during which the applicant gave oral testimony and answered questions from the Board.  The Board found that the applicant was not truthful, because his oral evidence during the hearing was vague and significantly inconsistent with his prior evidence in the Board hearing bundle, and he was evasive in answering the Board’s questions. He also raised a new matter during the Board hearing that was not previously raised with the Director concerning an assertion that there was a settlement agreement between him and one of the perpetrators for the latter to vacate the farmland bought by his cousin on condition that the applicant withdrew the murder charge, but the applicant gave inconsistent accounts to the Board when questioned. 

6.Nevertheless, the Board proceeded to assess the claim on the assumption that the applicant’s allegations were true.  Because by the time of the Board hearing, more than 20 years had elapsed since the murder that the applicant witnessed, and it had been more than 15 years since he left Pakistan, the Board considered that there was no longer a real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.

7.Therefore, on 18 January 2019 the Board dismissed the applicant’s appeal on all the applicable grounds except torture risk.

Decision of the court below

8.On 28 January 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation he raised a number of grounds for judicial review, which the Judge summarized at [36] of the Form CALL-1 as follows:

“36. The Applicant filed a very well written thirteen-page affirmation in English putting forward his submissions in support of his application. In the affirmation, he advanced the following five grounds for applying for leave to apply for judicial review:

(1)  lack of language assistance (paragraphs 16, 22, 29 to 34 of his affirmation);

(2)  lack of legal assistance (Paragraphs 17, 20 to 22 of his affirmation);

(3)  the Decision was biased and a templet decision (Paragraphs 18, 19 and 28 of his affirmation);

(4)  unfair weighting given to COI (Paragraphs 23, 24 and 25 of his affirmation); and

(5)  the Decision was unfair and illogical (Paragraphs 26 and 27 of his affirmation).” [sic]

9.Following a hearing on 4 January 2022 at which the applicant appeared before the Judge, on 25 January 2022 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [38 - 57] of the Form CALL-1.  In summary, the Judge considered that there was no substance to Grounds (1)  and (2)  mainly because the applicant was legally represented and provided with language assistance on his claim before the Director, and an interpreter was available to assist at the Board hearing. Thus, the Judge considered that the applicant suffered no prejudice from the lack of legal representation before the Board or from the level of language assistance provided.

10.As for Ground (3), the Judge stated at [48] that at the hearing of 4 January 2022, the applicant withdrew this complaint, and that the Judge was satisfied that the Board had correctly identified the issues, considered the evidence and gave reasons for its finding, thus there was no substance to this ground and the Board’s decision was not a biased or template decision.

11.The Judge rejected Ground (4), on the basis that the weight to be given to country of origin information (COI)  is basically a finding of fact which is solely within the province of the Board, and that it was unnecessary to consider COI since the Board found that there was no real risk of harm in the event of refouelement.  As for Ground (5), the Judge considered that it was neither unreasonable nor irrational for the Board not to accept that the applicant was unaware of the availability of non-refoulement protection in Hong Kong earlier, given that he had stayed in Hong Kong for 19 of the past 26 years.  At [56 - 57] of the Form CALL-1 the Judge concluded:

“56.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claims. The Applicant’s claims are founded on his fear of harm by WK’s group. The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. The Board found him incredible. As the Applicant bears the burden of proving his claims, such a finding is fatal. Even accepting his evidence, the Board further found that his fear of harm was not well-founded. It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of internal relocation.

57.  The Board’s Decision did satisfy the enhanced Wednesbury test.  Its Decision was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The Board observed a very high standard of fairness. Having considered his grounds for application, the Court was satisfied that the Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review was refused.”

Appeal to this Court

12.On 8 February 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal are essentially that the lack of legal and language assistance resulted in procedural unfairness.  He pointed out that neither he nor his friend who assisted him in preparing his Form 86 understand legal jargon and that without legal assistance, he could not identify legal errors in the Director or Board’s decisions.  Even when an interpreter was provided at the Board hearing, the hearing bundle was not read to him.  The applicant also pointed out that his friend was only able to translate the gist of English documents, that his friend is not a professional, and that he could not always find help with interpretation or translation.  Further, the applicant requested that the judgment be translated or read to him, as no translation of the judgment has been provided.

13.The applicant lodged written submissions on appeal on 17 May 2022.  In those submissions, he largely reiterated his grounds of appeal, and elaborated that without sufficient language assistance to enable him to understand his claim (and the Board’s decision rejecting it)  to its fullest, he is deprived of the right to lodge a proper appeal and his case is put at risk of being dismissed for lack of grounds.  He further submitted that the authorities have not taken into account the fact that English is not his first language, that he has no right to work in Hong Kong and therefore cannot hire proper help, and that he is traumatized by the problems in his home country.

14.As the applicant was absent at the hearing of this appeal, we decided to deal with his appeal by way of paper disposal.

Legal principles

15.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration[6]; Re Md Shohel Sheak [7]; and Re Limbu Birkhaman [8].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

Discussion

16.As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge’s decision, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.In the present case, the Board rejected the applicant’s claim for non-refoulement protection, mainly due to the passage of time (more than 20 years)  attenuating any risk of harm.  The Board also found that internal relocation was viable.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board.  The court will not interfere with such assessments unless they are reversible on public law grounds.  There seem to be no such valid public law grounds.

18.As for the applicant’s arguments regarding lack of legal and language assistance, whether the level of legal or language assistance provided would result in unfairness, depends on the circumstances.

19.The applicant was legally represented and provided with language assistance on his claim before the Director.  At the Board proceedings, an interpreter was provided, and the Board decision was based on its assessment of the applicant’s oral evidence at the Board hearing compared with his previous evidence presented to the Director, as well as on country of origin information.  The applicant did not raise any issue of language problem during the hearing before the Board.  The applicant had not specified how the lack of language assistance outside the “hearing” before the Director and/or the Board had affected him.  Further, the Board assessed the claim on the assumption that the applicant’s allegations were true.

20.In the circumstances of this case, it is difficult to see how the level of legal or language assistance provided, in fact resulted in unfairness.

21.In any event, as this Court (differently constituted)  has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [9]; Re Zahid Abbas [10]; Re Lopchan Subash [11]; Re Gurnishan Singh [12]; Re Gurung Sagar[13]; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office[14].

22.Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

23.For these reasons, we are of the view that the appeal has no merit and accordingly this appeal is dismissed.

The applicant, unrepresented, acting in person, absent