RE RAHMAN ABDUR

CACV 369/2018

[2019] HKCA 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 369 OF 2018

(ON APPEAL FROM HCAL 746/2017)

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RE:	RAHMAN ABDUR	Applicant

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Before: Hon Lam VP, Kwan VP and Barma JA in Court

Date of Judgment: 14 June 2019

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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.  On 26 February 2019, this court (Lam VP, Kwan VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of D’Almada Remedios J (“the judge”) on 24 July 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 8 March 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. [judges] were wrong as a matter of law for not having applied the principle of irrationality to the [Director’s Decision] refusing my application for judicial review.

2. [judges] were wrong as a matter of law for not having applied the principle of procedural unfairness to the [Director’s Decision] whereby the Director was required to give reasons justifying the decision.”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 21 March 2019.  In the written submission, the applicant submitted that:

(1) his legal aid application was refused and he had not been able to afford proper legal representation.  He had difficulty in getting translation.  These matters led to procedural unfairness;

(2) the Board erred in evaluating the Country of Information material.  The judge should have held that this constituted an error of law;

(3) the court should have adopted the test in Sufi & Elmi v UK (Applications nos 8319/07 and 11449/07).

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in the Notice of Motion and written submission.  

7.  As we have held in [15] of our judgment, the applicant did not advance the ground based on legal representation and language assistance in his application for judicial review.  It was thus not open to the applicant to advance this ground well outside of the time limit for judicial review.

8.  We note that, hitherto, the applicant has not raised any complaint based on Country of Origin information, the alleged failure to give reasons by the Director, or the Sufi & Elmi case.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

9.  As for the ground based on irrationality, this ground is vague and lacks particulars.  In our view, it is not reasonably arguable before the Court of Final Appeal.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion dated 8 March 2019 is dismissed.

(M H Lam)	(Susan Kwan)	(Aarif Barma)
Vice-President	Vice-President	Justice of Appeal

The applicant acting in person

CACV 369/2018

[2019] HKCA 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 369 OF 2018

(ON APPEAL FROM HCAL 746/2017)

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RE:

RAHMAN ABDUR

Applicant

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Before:

Hon Lam VP, Kwan and Barma JJA in Court

Date of Hearing:	19 February 2019
Date of Judgment:	26 February 2019

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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 D’Almada Remedios J given on 24 July 2018 refusing leave 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 dated 13 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 9 June 2015 and 30 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 8 December 2009 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 11 December 2009. 

3.  The applicant’s claim was based on alleged threats from the Taliban because he refused to join them.  The details of the applicant’s claim have been summarised by the judge at [12] to [25] of the CALL-1 Form.

4.  By a Notice of Decision dated 9 June 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 30 August 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  The Board held a hearing on 22 July 2016, at which the applicant was represented by the Duty Lawyer Service and answered questions put to him by the adjudicator.  The Board dismissed the appeal on 13 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection as it considered that it could deal with the Director’s Second Decision without a further hearing.  At [50] of the Board’s Decision, the Board found that the applicant’s credibility was questionable, and that his evidence was far-fetched.  Having analysed his evidence in some detail at [51] to [67], the Board did not accept that the applicant had established that he was at any real risk of harm that would justify non-refoulement protection.

The judge’s decision

7.  The applicant filed a Form 86 on 10 October 2017 which contained no ground for seeking relief. 

8.  In the affirmation in support of the leave application dated 10 October 2017, the applicant advanced grounds for judicial review which the judge summarised as follows:

(i)    the Director and the Board failed to understand the extent of the impact of the Taliban in Pakistan; and 

(ii)   the Director and the Board failed to understand the Applicant’s fear and vulnerability that the Pakistan government will not provide protection to him since the government has failed to eliminate the Taliban.  

9.  The applicant did not request an oral hearing before the judge, who therefore dealt with the application on paper.

10.  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 [34] to [38] of the CALL-1 Form:

“34. The Director and the Adjudicator both considered the Taliban and its strong hold. The Adjudicator stated there was ample information in Country of Origin Information (‘COI’) reports and news reports accessible online that supported the Applicant’s assertion and consequently recognized that the MB Group was strong in the Khyber Agency and to a lesser extent, in Peshawar. The Director carefully considered the Pakistani Government’s provision to protect its citizens. There is no substance in this ground.

35. The Adjudicator at the rehearing found that the Applicant’s claim failed on credibility and his accounts were therefore untruthful. Not finding him to be a genuine torture claimant he dismissed his claim. This is a finding that a decision maker is entitled to make based on the evaluation of the evidence that is available to him, there is no basis upon which to interfere with those findings.

36. For judicial review applications, the court concerns itself with the reasonableness, lawfulness and fairness of the decisions against which relief is claimed. It is not an avenue for reassessment of the evidence. High standards of fairness must be attained and the court must consider the matter after rigorous examination and scrutiny.

37. After rigorous examination and scrutiny, I do not find any error of law nor evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The decisions of the Director and the Adjudicator did satisfy the enhanced Wednesbury test. They were not Wednesbury unreasonable.

38. The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  The application for judicial review is refused.”

Grounds for appeal

11.  In the Notice of Appeal dated 6 August 2018 the applicant contended that:

“The gravity of my circumstances have not been weighted or realized by both Putative Respondents while considering my claim. I should be given an opportunity to plead my case properly”

12.  In his skeleton submissions dated 15 January 2019, the applicant submitted that:

(1)   he did not receive legal aid and could not understand legal documents or correspondences which are written in English;

(2)   the judge failed to appreciate the fact that the Board did not have a balanced view of information; and

(3)   the judge should have followed the principles laid down in MI(Palestine) v Secretary Of State For The Home Department [2018] EWCA Civ 1782.

13.  We heard the appeal on 19 February 2019.

Discussion

14.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Director and the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal. As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

15.  As for the grounds in the skeleton submissions, we observe that the first ground was never raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst[2018] HKCA 504, CAMP 524/2018 at §14(4)). 

16.  The second ground mentioned in the skeleton submissions has no merit, the judge correctly pointed out that the Board had rejected the applicant’s appeal based on its assessment of his credibility, which led it to conclude that he was not in fact at risk of harm if refouled.  The judge correctly noted that an application for judicial review does not operate as a further appeal, and that the court will only interfere with the decision of the Director of the Board on public law grounds, none of which are made out here.

17.  As for the third ground in the skeleton submission, the applicant does not begin to explain how it is relevant to the present case.  It was also a point which was not made before the judge below.

18.  None of the grounds raised by the applicant have merit.  We would therefore dismiss the appeal.

 
 

(M H Lam)	(Susan Kwan)	(Aarif Barma)
Vice-President	Justice of Appeal	Justice of Appeal

  

The applicant acting in person