Case Detail

CACV 207/2019

[2020] HKCA 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 207 OF 2019

(ON APPEAL FROM HCAL NO 1323 of 2018)

________________________

Re:

Afzal Muhammad

Applicant

________________________

Before: Hon Kwan VP, Chu JA and Toh J in Court

Date of Judgment: 22 December 2020

________________

JUDGMENT

________________

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

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Toh J) handed down on 19 August 2019 ([2019] HKCA 926) (“the Judgement”) dismissing his appeal against the decision of Deputy High Court Judge K W Lung given on 16 April 2019. By his decision the learned judge had refused the applicant’s application for leave to seek judicial review of the decision of the adjudicator of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2. By a Notice of Decision dated 14 September 2017, the Director of Immigration rejected the applicant’s claim.

3. The applicant appealed to the Board against the Director’s decision and his appeal was dismissed by the Board on 21 June 2018.

4. He filed a Form 86 on 9 July 2018 to seek leave to apply for judicial review against the decision of the Board. His application was refused by Deputy High Court Judge K W Lung on 16 April 2019.

5. The applicant filed the Notice of Appeal against the decision of the judge on 30 April 2019, the appeal was heard on 13 August 2019. It was dismissed by the Court of Appeal on 19 August 2019.

6. The applicant filed a Notice of Motion on 30 August 2019 and lodged his written submissions on 13 September 2019.

7. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 September 2019 that the Notice of Motion shall be determined on paper only without an oral hearing. We think it appropriate to do so, and will determine this application on paper.

The grounds of appeal

8. The grounds of appeal as stated in the notice of motion and the applicant’s written submission are summarized as follows:

(1) that the judges should not have dismissed Ground (1) simply because generally speaking fact-and-evidence sensitive new arguments will not be entertained;
(2) that “it is a valid argument and without proper assistance throughout the appeal, discretion should be granted as it was indeed an error made by the lower authorities”;
(3) that by saying there is a lack of translation, he was not referring to having interpreter service “at all times as he may desire”, but rather because the Determination had not been officially read to him and therefore he was deprived of the right to make full grounds for appeal;
(4) that by not having the determination translated or read back to him, he could not have understood the determination to the fullest and is unfair to him. He had to submit everything in English because the court would not accept grounds written in his own language;
(5) that he had to ask for help without having the ability to verify if everything is correct and true. The fact that oral hearings and hearings were arranged with interpreters mean that the court recognizes the significance of the language assistance, and therefore such assistance should extend to understanding the judgment. This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal;
(6) that the judgment was not interpreted to him. He cannot understand the judgment in its full scale. The court should have well recognized by now that he requires language assistance and if a court has recognized such need but refuses to grant, then it is discriminatory and be considered procedural unfairness; and
(7) that there is a lack of transparency in the processing of non-refoulement claims and this needs to be investigated by the courts.

Discussion and Disposition

9. Section 22(1)(b) of Hong Kong Court of Final Appeal Ordinance, Cap 484, provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10. In the judgment, we pointed out at [19] that the high standard of fairness required by law would not entail interpretation service being made available to an applicant at all times as he may desire.

11. The applicant’s grounds of appeal do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. He has failed to identify any questions of great general or public importance which ought to be submitted to the Court of Final Appeal for determinations in accordance to the section 22(1)(b). He has not advanced any reasonably arguable grounds to reverse the judgment of the Court of Appeal. There is also no basis for granting leave on the “or otherwise” limb under section 22(1)(b).

12. We therefore dismiss the application for leave to appeal to the Court of Final Appeal.

(Susan Kwan)	(Carlye Chu)	(Esther Toh)
Vice President	Justice of Appeal	Judge of the
		Court of First Instance

The applicant (appellant), acting in person

CACV 207/2019

[2019] HKCA 926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 207 OF 2019

(ON APPEAL FROM HCAL NO 1323 of 2018)

________________________

	Afzal Muhammad	Applicant
	and
	Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office	1^st Putative Respondent
	The Director of Immigration	2^nd Putative Respondent

________________________

Before: Hon Kwan VP and Toh J in Court

Date of Hearing: 13 August 2019

Date of Judgment: 19 August 2019

________________

JUDGMENT

________________

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

1. This is the appeal against the decision of Deputy High Court Judge K W Lung on 16 April 2019 refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. The applicant did not attend the hearing of this appeal. We will determine this on the basis of the papers lodged in court.

2. The applicant is a national of Pakistan who came to Hong Kong illegally and was arrested by police on 8 December 2012. He lodged a torture claim which was refused by the Immigration Department on 5 July 2013 and his appeal was dismissed by the Board on 31 October 2013. He raised a non‑refoulement claim on 27 January 2014 on the basis that he would be harmed or killed by Cheema and/or his people because of a land dispute with him if he were repatriated to Pakistan.

The Director’s decisions

3. By a Notice of Decision dated 14 September 2017, the Director rejected the applicant’s non‑refoulement claim on the grounds including BOR 2 risk, BOR 3 risk and persecution risk.

4. The Director found that there are no substantial grounds for believing that there will be any real and substantial risk of the applicant being harmed or killed by Cheema and/or his people. Furthermore, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. Thus, the non‑refoulement application was rejected by the Director.

The Board’s decision

5. The applicant attended the hearing of the appeal against the Director’s decision on 16 April 2018. The Board found the applicant’s claim to be generally lacking in credibility and that he has not established that there are substantial grounds which enable the conclusion that he will face a real risk of ill‑treatment on the basis of the dispute with the Cheema family. The Board decided that the applicant’s claims for non‑refoulement protection were not made out on BOR 2 risk, BOR 3 risk and persecution risk and rejected the appeal on 21 June 2018.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 9 July 2018 to seek leave to apply for judicial review against the decisions of the Director and of the Board.

The judge’s decision

7. The judge held that the applicant has not set out any exceptional circumstances which allow him to apply for judicial review of the Director’s decision. According to Re Moshsin Ali[2018] HKCA 549, the decision of the immigration officer is not a decision that is susceptible to judicial review once an appeal to the Board is pursued by a claimant. Thus, the judge dismissed the application for leave for judicial review of the Direction’s decision.

8. The judge considered that the applicant’s grounds are not supported by any evidence and he was unable to show that his judicial review has any reasonable chance of success. Therefore, the leave application was refused on 16 April 2019.

Grounds of appeal

9. The applicant filed a Notice of Appeal against the decision of the judge on 30 April 2019. He stated his grounds of appeal in his notice of appeal which are summarized as follows:

(1) The judge erred in ruling that the intended ground (2) of judicial review is only the applicant’s opinion unsubstantiated by any evidence. The Director has ignored the fact that police effectiveness varies and corruption especially within the lower levels of police is common. This has been supported by County of Origin Information (“COI”). Neither the Director nor the Board has explained how this significant piece of COI has been take into consideration and how it has been outweighed by any other factors which would make state protection available.
(2) The Board’s decision has not been translated to the applicant till now so the judge erred in ruling that this is not a valid ground for the applicant to submit that he was unable to set out the grounds when the decision was not translated to him.

10. Similar grounds were also raised in the original leave application before the judge. However, as for ground (1) above, the applicant did not raise such complaint against the Board in the original leave application.

Analysis

11. 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.

12. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision‑makers are the Director and the Board. Though in non‑refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.

13. An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

14. In respect of new arguments, the Court of Appeal will not generally entertain fact‑and‑evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

15. 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.

16. As the decision by the Board has superseded the decision of the immigration officer and represents the final decision on the claim at the end of its processing, it was confirmed by the Court of Appeal decision in Re Moshsin Ali at para 45that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the Board is pursued by a claimant. Therefore, the judge was correct to dismiss the application for leave for judicial review of the Director’s decision.

17. The applicant’s complaint against the Board on its failure to explain how the significant piece of COI regarding the Pakistani police has been taken into consideration and how it has been outweighed by any other factors which would make state protection available was not raised previously. An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below.

18. In any event, the main reason for the dismissal of his claim by the Board is that the Board found that his claim had lacked credibility. His evidence at the hearing was neither coherent nor plausible and on a number of issues was indeed contrary to known facts. The applicant had also failed to produce supporting documents that he claimed to be able to produce. As the Board did not accept the applicant’s case that he would face a real risk of ill‑treatment on the basis of the dispute with the Cheema family, it is unnecessary for the Board to explain its consideration of the COI regarding the Pakistani police in its decision. The Board gave detailed reasons for its refusal of the applicant’s case. After reviewing the decision of the Board, there are no errors of law or procedural unfairness or irrationality in its decision.

19. As for the ground relating to the lack of translation of the Board’s decision, the high standard of fairness required by law would not entail interpretation service being made available to an applicant at all times as he may desire: Re Gurung Sagar[2019] HKCA 658. Moreover, all court documents submitted by the applicant including the affirmation filed in support of the leave application, the notice of appeal, and the written submission in support of this appeal, were written in English. This indicates that either the applicant is himself conversant with the English language or he has access to language assistance of his own if needed. Therefore, the applicant has failed to show that the alleged lack of translation of the Board’s decision would render the process unfair.

20. The applicant has failed to demonstrate that the judge had made errors of law or had failed to take into account relevant matters which had already been placed before the court or was otherwise plainly wrong. None of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge.

Disposition

21. The appeal is dismissed as there is no merit in the appeal and no prospect of success in the intended application for judicial review.

(Susan Kwan)	(Esther Toh)
Vice President	Judge of the
	Court of First Instance

The applicant was absent.

RE AFZAL MUHAMMAD

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