RE MUHAMMAD ASIR

CACV 240/2020

[2021] HKCA 396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2020

(ON APPEAL FROM HCAL NO 1795 OF 2018)

_________________________

RE:

MUHAMMAD ASIR

Applicant

_________________________

Before:

Hon Yeung VP, Chu JA and Toh J in Court

Date of Written Submissions:	21 January 2021
Date of Judgment:	30 March 2021

________________

J U D G M E N T

________________

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

1.  By a judgment dated 29 December 2020[1], this Court (Yeung VP and Toh J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 30 June 2020 in HCAL 1795/2018 refusing to grant leave to him to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) given on 17 August 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 14 December 2017 rejecting his non-refoulement claim.

2.  By a Notice of Motion dated 14 January 2021, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

(1)  He had no knowledge of the judicial system of Hong Kong and he did not know failure to lodge written submissions would cause an oral hearing being vacated.  There was a lack of language assistance rendered to him.

(2)  There was procedural unfairness in the judges’ decisions.  His application for legal aid was rejected and there was a lack of legal assistance.

(3)  The judges found no error in the Board’s and the Director’s decisions but the applicant denied any inconsistency in his evidence and the Board and the Director made decisions on the basis of other applicants’ cases.  The Judge did not give a fair judgment on the Board’s decision as the price of land in Pakistan has appreciated in value and his uncle may harm or kill him unless he hands over the land to his uncle.

(4)  He had agreed to hand over half piece of land to his uncle and he urged the court to grant him extension of time to solve his problem with the help of the senior villagers of his home town.

3.  In compliance with the directions made by the Registrar of Civil Appeals on 15 January 2021, the applicant lodged his written submissions on 21 January 2021.

4.  In the written submissions, he advanced the following complaints against the Board’s and the Director’s decisions:

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirement.

(2)  The Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness.

(3)  The Board had failed to adhere to the high standard of fairness owed to a self-represented claimant by (a) failing to allow sufficient time for him to prepare for the appeal hearing and the bundle was all in English and (b) relying on sources of news that was not officially recognized or hearsay or outdated that resulted in groundless speculation that it would be safe for him to return to his home country.

(4)  The Board had failed to consider the concept of extended acquiescence.

(5)  The Director had failed to consider the concept of extended acquiescence.

(6)  The Director had failed to advise him to obtain evidence to prove his claim on BOR 2 risk and medical report.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on the papers without an oral hearing.

6.  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.

7.  Firstly, the complaints against the Judge for his failure to properly and sufficient considered the Board’s and the Director’s decisions were ill-founded.  As explained at [6] of our judgment, the Judge had duly set out and summarized the crucial findings and conclusions in the CALL-1 Form and then gave his reasons for rejecting each ground of challenge advanced by the applicant.  We found no error of law or procedural unfairness on the part of the Judge in reaching his decision.

8.  Secondly, it is trite that Judicial review is not an avenue for revisiting the assessment of the Board and the Director in the hope that the court may consider the matter afresh.  As explained at [12] and [13] of our judgment, the applicant’s complaints against the Board’s and the Director’s decisions were general assertions without particulars and we found no public law grounds that warrants this court to intervene with the Board’s decision.

9.  Thirdly, the high standard of fairness does not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages: see Re Zunariyah[2018] HKCA 14; Re Zahid Abbas[2018] HKCA 15; Re Tariq Farhan[2018] HKCA 17; and Re Lopchan Subash[2018] HKCA 37. Further, the fact that the applicant has been using English in preparing all the court documents indicated that either he is conversant with the English language or that he has access to language assistance of his own if needed.

10.  Lastly, regarding the applicant’s complaint that he had lost the chance to be heard orally because of his failure to lodge the written submissions were simply not true.  We note that the Judge heard his case on 16 August 2019 and this Court heard his appeal on 22 December 2020 (after he lodged his written submissions on 27 October 2020).

11.  In all, we did not find any merit in any of the matters and complaints set out in the Notice of Motion and the written submission and his intended appeal is bound to fail.

12.  For the reasons that we gave in our judgment of 29 December 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

13.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.

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

The applicant, unrepresented, acting in person

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[1][2020] HKCA 1066

   

CACV 240/2020

[2020] HKCA 1066

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 240 OF 2020

(ON APPEAL FROM HCAL NO 1795 OF 2018)

___________________

RE:

MUHAMMAD ASIR

Applicant

___________________

Before:

Hon Yeung VP and Toh J in Court

Date of Hearing:	22 December 2020
Date of Judgment:	29 December 2020

___________________

J U D G M E N T

___________________

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

Introduction

1.  This is an appeal against the decision of K.W. Lung (“the Judge”) on 30 June 2020 in HCAL 1795/2018 refusing leave to the applicant to apply for judicial review.  By that decision, the Judge refused his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 17 August 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 14 December 2017.

Background

2.  The applicant is a Pakistani national. He came to Hong Kong illegally by boat from China on 26 October 2015. He was arrested by police on 27 October 2015 and was referred to the Immigration Department on 28 October 2015.  He lodged a non‑refoulement claim on 29 October 2015 by way of written representation on the basis that if he were to return to Pakistan, he would be harmed or even killed by his paternal uncle, Sabir Khan because of a land dispute. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1376. 

3.  By the Notice of Decision dated 14 December 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 23 April 2018, the Board dismissed the appeal on 17 August 2018.  For the reasons stated in [44] to [53] of the decision, the Board had serious doubts about the credibility of the applicant’s claim as his evidence was inconsistent as to the size and ownership of the land in dispute, how his uncle handled his own piece of land and if his cousins were present when he was attacked by his uncle. The Board did not accept the fundamental basis of the applicant’s claim that he had a land dispute with his uncle nor he would face any form of harm upon his return to his home country.  For the aforesaid reasons, the Board was not satisfied that the applicant is at risk on any of the applicable grounds and his appeal was dismissed.

The Judge’s decision

5.  On 31 August 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decision of the Board.  In his supporting affirmation, as summarized by the Judge at [10] of the CALL-1 Form, he advanced the following grounds for his intended challenge:

(1)  No reasonable basis rejecting his evidence.

(2)  Failure to consider extended state acquiescence.

(3)  Failure to consider the Country of Origin Information in assessing the risk.

(4)  Irregularity of the decision maker.

(5)  Failure to place weight on relevant information or selective placing weight on irrelevant information.

(6)  Failure to consider a consistent system of human right violations.

(7)  Irregularity (placing weight on irrelevant matters, or on inaccurate or incorrect facts.

(8)  Procedural impropriety (failure to call psychological and/or psychiatric reports and/or evaluations).

(9)  Procedural impropriety (apply the incorrect standard of proof).

(10)  No proper basis for consideration of internal relocation.

6.  The Judge heard the case on 16 August 2019 and by the CALL-1 Form of 30 June 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [11] to [16] of the CALL-1 Form:

“11.   The applicant appeared before me and he confirmed that he was able to speak freely and tell his stories fully to the immigration officer and the Adjudicator. He understood the hearing bundle, the Director’s Decision and the Board’s Decision.

12.    I put the Board’s findings above to him and ask him if he had any comments on them. He said that he had no comments.

13.    It is obvious that the Board, having considered his evidence and for the reasons given in the Board’s Decision, rejected his evidence as to the fact in support of his claim. He has no factual basis for his application.

14.    Grounds (1), (4), (5), (7), (9) and (10) are his opinions without any evidence in support of them.

15.   Grounds (2), (3) (6) and (8) are irrelevant to the issues for the Board’s consideration, given the Board having found that the applicant had fabricated his case. They fail.

16.    The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

The Appeal

7.  On 3 July 2020 , the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal is as follows:

“Judges are unfair to examine the decision of TCAB and NOD because there was signification that the judges did not obtain it from decision of TCAB. I accepted that the Board gave me freedom to say everything what I want and what happened to me in Pakistan. But the Board knows the performance of our country police and other department. I accepted that state government is available but just for rich peoples in media only. My opponents are very well known and rich man. Main point he has connection with police departments.”

8.  In compliance with the direction given by Master Tsui on 15 October 2020, the applicant lodged his written submissions on 27 October 2020.  In his written submissions, he advanced the following:

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirements.

(2)  The Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or were the result of procedural errors or unfairness.

(3)  The Board had failed to apply the high standard of fairness owed to a self-represented claimant by failing to provide hearing bundle with translation earlier; relying on sources of news that were not officially recognized or were hearsay or were outdated thereby resulting in groundless speculation that he would be safe to return home.

(4)  The Director had failed to consider the concept of extended acquiescence.

(5)  He claimed that if he were to return to his home country, he would be harmed or killed and the government cannot protect him.

(6)  He had made many written submissions but “nothing work”.  He did not have written proof for his case and reinstated his enemies had connection with the police and were powerful.

(7)  He agreed that the Board allowed him to talk freely and provided an interpreter to help him but he was not satisfied with its decision. The Judge did not allow him to talk about the Board’s decision and only asked his name and address. He admitted that he knew nothing about judicial review and his legal application was rejected.

9.  We heard the appeal on 22 December 2020.  The applicant had nothing further to say. 

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP 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 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.

(2)  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 or for running arguments which could and should have been raised but 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 can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

11.  The applicant did not identify any error of law in the Judge’s decision in his grounds of appeal.  His complaint that the Judge did not allow him to talk about the Board’s decision at the hearing was without basis and untrue.  Firstly, as stated at [1] of the CALL-1 Form, the applicant did not request for an oral hearing in the first place and in order to ensure the applicant understand the purpose of judicial review, the Judge invited the applicant for an oral hearing so that he could explain the same to the applicant and see if there were any further grounds in support of the application.  Secondly, at the oral hearing on 14 November 2019, the Judge, as clearly set out in [11] and [12] of the CALL-1 Form, confirmed with the applicant if he understood the hearing bundle, the Director’s and the Board’s decisions.  The Judge then put the Board’s findings to the applicant and asked him if had had any comments on them and the applicant said no. In view of the aforesaid, the applicant’s complaint simply cannot stand.

12.  Regarding the applicant’s grounds of appeal against the Board’s and the Director’s decisions, they are general assertions without particulars and they cannot be effective grounds to support a judicial review:  see Re Mizan Sikder[2019] HKCA 20; Re Aziz Nasir[2019] HKCA 578; Re Kharsu Numan[2019] HKCA 626; Re Salim Ahmed[2020] HKCA 244.

13.   After our careful reading of the Board’s decision, it rejected the applicant’s claims for non-refoulement protection primarily based on its assessment that the applicant’s evidence was full of inconsistencies and unreliable and therefore it was not accepted that there was any real or substantial risk of harm if he were to be refouled to Pakistan.  Such findings are within the province of the Board, and the Court will not interfere with such assessments unless they are reversible on public law grounds which we found none in this case. 

14.  We are also satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny and his decision is without flaw.

15.  For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.

(W YEUNG)	(ESTHER TOH)
Vice President	Judge of the
	Court of First Instance

The applicant acting in person

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[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] 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.

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

[4] 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.