CACV 479/2018
[2019] HKCA 285
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 479 OF 2018
(ON APPEAL FROM HCAL 21/2018)
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| Before: | Hon Au JA, Fung and Yau JJ in Court |
| Date of Hearing: | 5 March 2019 |
| Date of Handing Down Judgment: | 11 March 2019 |
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J U D G M E N T
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Hon Au JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 14 September 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 2055, refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (“the Board”) dated 15 September 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”).
Background
2. The applicant is a national of Pakistan. He entered into Hong Kong on 7 May 2013 illegally and was arrested by the police on 28 June 2013. He lodged a non-refoulement claim on 1 July 2013.
3. The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 6 of the Director’s decision dated 11 May 2016 (“Director’s First Decision”), and paragraphs 22 - 38 of the Board’s Decision.
4. Briefly stated, the applicant claimed that if he were to return to Pakistan, he would be harmed or killed by Haji Rafaqat (“Haji”) or Haji’s associates. The applicant claimed that he used to work for Malik Sadaqat (“Malik”), the then administrator of village burhaan for people’s party of Punjab (“PPP”), who won the previous election defeating Haji, a member of Pakistan Muslim League (N) (“PML/N”). Since the applicant and all of his family members were supporters of PPP and voted for PPP, Haji asked the applicant to change his political affiliation and cause his family members to support PML/N. The applicant refused and he claimed that such refusal would lead Haji to kill him.
The Director’s Decisions
5. By the Director’s First Decision and the Notice of Further Decision dated 20 March 2017 (“Director’s Further Decision”), the Director rejected the applicant’s claim. The Director’s First Decision assessed the BOR 3 risk[1], the persecution risk[2], and the torture risk[3] and the Director’s Further Decision assessed the BOR 2 risk[4].
The Board’s Decision
6. The applicant first appealed the Director’s Decision to the Board. The appeal was heard on 21 August 2017. By that time, the Director’s Further Decision was already given and the Board also considered in the appeal the applicant’s BOR 2 risk as rejected by the Director.
7. After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds. The Board dismissed the appeal on the basis that the applicant’s evidence about the threats from Haji and the shooting incident were unreliable and his intention of seeking protection in Hong Kong was suspicious (paragraphs 40 - 44 of the Board’s Decision) and in any event, state protection was available to the applicant (paragraphs 49 - 57 of the Board’s Decision).
The Deputy Judge’s Decision
8. The applicant filed a Form 86 on 4 January 2018 seeking leave to apply for judicial review against the Board’s Decision. He also filed a supporting affirmation on the same day. The Deputy Judge summarized the applicant’s grounds of judicial review in the Deputy Judge’s Decision as follows:
“10. On 4 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:
(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;
(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;
(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;
(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected herself as to the extended meaning of state protection;
(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;
(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;
(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and
(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.”
9. The applicant’s leave application was heard on 8 August 2018. At the hearing, the applicant confirmed that his grounds for judicial review were as stated in the Form 86 and his supporting affirmation. Having considered the documents and the applicant’s submissions, the Deputy Judge granted the extension of time despite the applicant was late in filing his application but concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave. He set out his reasons in paragraphs 14 ‑ 17 of Deputy Judge’s Decision:
“14. They are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account the relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned duty lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.
15. The only other complaint which the applicant appeared to have made with any elaboration was over the hearing bundle being given to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.
16. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interview and the Director’s decisions should be well familiar to the applicant as they had earlier already been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at the appeal hearing before the Board he was assisted by an interpreter but he never raised any issue with the hearing bundle or requested that the adjudicator for further time to enable him to properly prepare for his appeal. In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.
17. In the premises and having proceeded to consider 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.”
Grounds for appeal
10. The applicant filed the Notice of Appeal dated 27 September 2018 to appeal the Deputy Judge’s Decision. The Notice of Appeal refers to the supporting affirmation for the grounds of appeal. In the applicant’s supporting affirmation, he sets out the following two grounds of appeal:
(1) The Deputy Judge was wrong in law in holding that there was no state acquiescence or involvement (“1st ground of appeal”).
(2) The Deputy Judge failed to provide detailed reason in support of his decision (“2nd ground of appeal”).
11. In purported further support of the appeal, the applicant also refers in this affirmation to an Exhibit A “for the written Judgment for the Applicant [ie, the Deputy Judge Decision] which is unfair and unreasonable”. Exhibit A is a 27-page document in which the applicant repeats his personal background and the basis of his non‑refoulement claim. He cited various legal authorities and listed “Nine grounds of judicial review” challenging the Adjudicator’s decision (ie, the Board’s Decision).
Discussion
12. At the hearing, the applicant confirms the above grounds of appeal and that he has nothing further to add.
13. Before considering the merits of the grounds of appeal, it is worth repeating the following now well-established principles.
14. First, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal. The primary decision maker to consider whether there was state acquiescence or involvement is the Director and the Board. The court would and should not usurp the role of the Director or the Board and will only intervene if public law grounds for doing so are established. See: Re Zunariyah[2018] HKCA 14; Re Qadir Sher[2018] HKCA 160; Hounkpedji Messanhv Torture Claims Appeal Board[2018] HKCA 152; Re Rizwan alias Rizwan Gulistan[2018] HKCA 162; and Re Masoom Parvez[2018] HKCA 163.
15. Second, an appeal against refusal of leave for judicial review is not an occasion for the applicants to regurgitate arguments already advanced. The Court of Appeal would only reverse the decision of the Deputy Judge if it could be demonstrated that there were errors in law, that the Deputy Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].
16. As to the first ground, in both the Director’s First Decision and the Board Decision, state acquiescence or involvement was fully considered in light of the documents submitted to the Director and the Board. The Director and the Board found that there was no state acquiescence or involvement and state protection is available (paragraph15 of the Director’s First Decision and paragraphs 51 - 56 of the Board’s Decision). There is no scope for finding risk of torture based on the concept of state acquiescence or involvement.
17. The Deputy Judge in his decision had carefully examined the Board’s and the Director’s Decisions and concluded that their decisions did not commit any public law errors, in that: their decisions did not make any errors of law, were not tainted with any procedural unfairness, and were not Wednesbury unreasonable; and the Director and the Board had also achieved the high standards of fairness required for assessing applicant’s non-refoulement claim (paragraph 17 of the Deputy Judge’s Decision).
18. Other than making a general and vague complaint that the Deputy Judge was wrong, the applicant has not in this appeal identified specifically what are the errors committed by the Judge in his reasons.
19. This is therefore not a valid basis which can show that the Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.
20. There are no merits in this ground of appeal.
21. As to the 2nd ground of appeal, it is clear from the Deputy Judge’s Decision that he has provided detailed reasons for his conclusion (paragraphs 14 - 17 of the Deputy Judge’s Decision). This ground of appeal is also entirely unmeritorious.
22. In his skeleton argument dated 30 January 2019, for the 1st ground of appeal, the applicant quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim. For the 2nd ground of appeal, the applicant quoted The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243; and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 on the decision maker’s “duty to act fairly.”
23. These however are related to complaints directed at the Director and the Board, which had been properly addressed by the Judge in his reasons. As mentioned above, the applicant has not identified anything in this appeal to demonstrate why the Judge was wrong in his reasons. These authorities therefore do not assist the applicant in this appeal.
24. Finally, in relation to the nine grounds of judicial review stated in his supporting affirmation for the Notice of Appeal, these are all complaints made against the Board’s Decision. Those complaints again do not identify any error in the Deputy Judge’s Decision.
25. In any event, we have reviewed the decisions of the Board and of the Judge and the reasons they gave for their decisions. We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions. There is no basis to disturb the Judge’s decision.
Disposition
26. For the reasons given above, the applicant’s appeal has no merits at all. Accordingly, we dismiss the appeal.
| (Thomas Au) | (Barnabas Fung) | (Joseph Yau) |
Justice of Appeal
| Judge of the Court of
First Instance | Judge of the Court of
First Instance |
The applicant acting in person
[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] 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 and its 1967 Protocol.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.