RE SHAH WALEED

CACV 170/2020

[2021] HKCA 381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 170 OF 2020

(ON APPEAL FROM HCAL NO 2863 OF 2018)

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J U D G M E N T

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

BACKGROUND

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, Toh and Lam JJ) handed down on 12 January 2021[1].  The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge K W Lung on 28 May 2020[2] dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 8 February 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 19 February 2021.  Having considered his submissions, it is considered appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan.  He is 29 years old.  He came to Hong Kong illegally on 13 November 2015 and was arrested on the same day.  He lodged a non-refoulement claim on 15 November 2015 on the basis that he would be harmed or killed by members of Muttahida Qaumi Movement because they demanded him for extortion which he refused.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 28 February 2018.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 3 December 2018.

5.  He filed a Form 86 on 13 December 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by DHCJ K W Lung on 28 May 2020.

6.  On 11 June 2020, the applicant filed a notice of appeal against the decision of DHCJ K W Lung.  An oral hearing of the appeal was conducted before the Court of Appeal on 5 January 2021.  The appeal was dismissed by the Court of Appeal on 12 January 2021.  The applicant filed a Notice of Motion on 5 February 2021 for leave to appeal to the Court of Final Appeal.

GROUNDS OF APPEAL

7.  The applicant stated his grounds of appeal in the Notice of Motion which may be summarized as follows:

(1)  The judges erred in determining that the judge had not failed to appreciate the significance of the applicant’s non-refoulement claim.  The lack of assistance provided to the applicant is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness;

(2)  The judges had not addressed the issues regarding (6) to (10) in his skeleton submission dated 17 December 2020;

(3)  The applicant was deprived of the right to make full grounds of appeal by not having the determination translated or read back to him so he could not understand the determination fully and it is unfair to him;

(4)  A judgment that has been made with the lack of evidential consideration of issues raised in court should be deemed an erred judgment.

8.  He made further contentions in his written submissions which may be summarized as follows:

(1)  The judgement of the judges does not make logical sense at all;

(2)  The judges have not considered his grounds of appeal thoroughly;

(3)  The judge failed to acknowledge the procedural unfairness of not providing translation of the Board’s determination to the applicant;

(4)  The applicant was unable to understand the reasons behind the judgment of the Court of First Instance.  As a result of such intentional ignorance in procedural fairness, the burden should be shifted to the judges to help determine the grounds of appeal;

(5)  No legal assistance was provided in lodging appeal to the Board and applying for leave;

(6)  There is no reasoning in explaining why the country of origin information in support of his assertion is completely thrown out.

ANALYSIS

9.  Section 22(1)(b) of the 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.  As for the grounds pertaining to the lack of language assistance, the applicant had submitted at the hearing before DHCJ K W Lung that he understood the Director’s decision which was explained by his lawyer and he also understood the Board’s decision as his friend explained it to him.  These oral submissions, together with the fact that he was able to set out his grounds of appeal and written submissions in English, indicate that he has access to language assistance of his own if needed.  Moreover, the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar[3].

11.  The applicant also criticized the Court of Appeal for failing to address the issues in paragraphs (6) to (10) of his skeleton submission dated 17 December 2020 (which are related to the grounds of lack of language and assistance as well as the lack of reasoning) and failing to consider his grounds thoroughly. In fact, the Court of Appeal has already explained the reasons for rejecting the applicant’s grounds, which include the relevant issues in his skeleton submission, in paragraph 15 of the judgment dated 12 January 2021. Thus, this ground is without merits.

12.  As for the ground relating to the lack of legal representation, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[4].The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  Thus, this ground is bound to fail.

13.  The applicant’s complaint about the lack of reasoning in rejecting the country of origin information is without basis.  The Director and the Board had given detailed reasoning in this regard in paragraphs 19 to 21 of the Director’s notice of decision and paragraphs 31 to 33 of the Board’s decision respectively.

14.  The rest of his grounds and submissions are just bare assertions without particulars or evidence in support.

15.  The applicant failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

16.  For the above reasons, his Notice of Motion filed on 5 February 2021 should be dismissed.

[1][2021] HKCA 46

[2][2020] HKCFI 966

[3][2019] HKCA 658

[4] CACV 284/2017 Re: Paswan Shibu Lal, para 21

CACV 170/2020

[2021] HKCA 46

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 170 OF 2020

(ON APPEAL FROM HCAL NO 2863 OF 2018)

___________________________

___________________________

________________

J U D G M E N T

________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 28 May 2020[1]. By that decision, the judge refused to grant leave to the applicant to seek 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.

2.  The applicant is a national of Pakistan.  He is 29 years old.  He came to Hong Kong illegally on 13 November 2015 and was arrested on the same day.  He lodged a non-refoulement claim on 15 November 2015.  His claim was made on the basis that he would be harmed or killed by members of Muttahida Qaumi Movement (“MQM”) because they demanded him for extortion which he refused.

The Director’s decision

3.  By a Notice of Decision dated 28 February 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director considered that the low frequency and intensity of the past ill-treatment from MQM members indicated that the asserted risk of harm upon the applicant's return to Pakistan is unlikely to be materialized and  the perceived harm has not attained the requisite minimum level of severity.  The Director found that there is no evidence to show that the police or other authorities were involved in the harm or threats made against the applicant. The Director further assessed that the availability of state protection and internal relocation option further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.   An oral hearing was held on 19 September 2018.  The Board was not satisfied that the applicant will face harm of any kind if he returns to Pakistan and resides in Attock, where his family lives and he resided before his departure, as the Board considered that the MQM members would not pursue the applicant to Attock from Karachi according to the existing evidence.  Thus, the Board held that the applicant was not entitled to non-refoulement protection in Hong Kong on any of the applicable grounds under the unified screening mechanism and rejected the appeal on 3 December 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 13 December 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7.  He put forward these grounds for his intended challenge:

(1)  He was not provided with language assistance;

(2)  He was not provided with legal assistance for his appeal and leave application;

(3)  It is irrational, unreasonable and unfair for the Board to reject the credibility of the application's whole case;

(4)  The Director has not explained how he exercised the balancing exercising in considering the country of origin information (“COI”);

(5)  The Director has adopted a formula and biased approach in assessing his claim;

(6)  The Board’s decision was not translated to him. Without knowing the reasons behind the rejection of his claim, he was deprived of the opportunity to make a full application for leave to apply for judicial review;

(7)  His life is genuinely in danger should he return to his home country.

The judge’s decision

8.  The applicant attended the hearing before the judge on 18 April 2019.  He admitted at the hearing that he had a fair interview and understood the Director's decision which was explained to him by his lawyer.  He further submitted that he understood the hearing bundle of the Board’s hearing which was explained to him by his friend and he has no complaint against the adjudicator and interpreter as he considered he had a fair appeal hearing before the Board.

9.  The judge followed Re Moshsin Ali[2018] HKCA 549 and decided that the Director's decision is not susceptible for judicial review.  The judge found that the ground pertaining to the lack of language assistance is not true as it is inconsistent with the applicant's oral submissions in court.  He further considered that the complaint of lack of legal assistance is untenable as the applicant does not have the absolute right of free legal representation at every stage of the proceedings and he had already had legal representation at the screening stage.  The judge also held that the applicant failed to identify in what respect he considered the Director was unfair or illogical in assessing the COI and the rest of the grounds are not supported by any evidence.

10.  As the applicant does not have a reasonable prospect of success in his intended judicial review, the judge dismissed the leave application on 28 May 2020.

Grounds of Appeal

11.  The applicant stated as his ground of appeal in the Notice of Appeal that his dangerous situation was disregarded.

12.  The Court received his skeleton submissions on 17 December 2020.  He put forward the following grounds in his skeleton submissions:

(1)   The judge failed to consider the significance and the level of unfairness the lack of language assistance has on him;

(2)   The judge did not provide explanation for rejecting his ground concerning the lack of legal assistance.

13.  At the hearing of the appeal, the applicant had nothing to say.

Discussion

14.  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.

(1)  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 a heightened standard in scrutinizing the decision of the Board having regard to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials, risk of harm, state protection and viability of internal relocation are matters 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, procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

15.  The applicant’s complaints against the judge are untenable.  The judge’s explanation for rejecting the applicant’s ground 2 regarding the lack of legal representation is set out in paragraph 19 of the judge’s decision. The judge has duly considered the ground on the lack of language assistance.  The judge rejected this ground because of the applicant’s oral submissions as mentioned above.  The applicant has not provided any evidence to rebut the Board’s finding that he would not face harm of any kind if he returns to Attock in Pakistan.  He also failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

16.  There is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review.  Therefore, the appeal should be dismissed.

[1][2020] HKCFI 966

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

[3] This refers to the risk of being arbitrarily deprived of life under article 2 of the Hong Kong Bill of Rights.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[5] 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.