RE KHAN KAMAL AHMED

CACV 254/2020

[2021] HKCA 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 254 OF 2020

(ON APPEAL FROM HCAL NO 1796 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):

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 1796/2018 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 8 August 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 13 April 2018 rejecting his non-refoulement claim.

2.  By a Notice of Motion dated 7 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 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 8 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 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 sufficiently 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 14 November 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 submissions 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.

[1][2020] HKCA 1070

CACV 254/2020

[2020] HKCA 1070

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 254 OF 2020

(ON APPEAL FROM HCAL NO 1796 OF 2018)

_______________________

_______________________

__________________

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 1796/2018 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 8 August 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 13 April 2018.

Background

2.  The applicant is a Pakistani national. He came to Hong Kong illegally on 30 September 2014 and was arrested by police on the same day. He was referred to the Immigration Department the next day. On 2 October 2014, he lodged a non-refoulement claim by way of written representation on the basis that if he were to return to Pakistan, he would be harmed or even killed by Ghalib Khan’s (“GK”) family as there had been blood feud between the applicant’s family and the family of GK and he would be ill-treated by the Pakistani police. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1374.

3.  By the Notice of Decision dated 13 April 2018, 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 9 July 2018, the Board dismissed the appeal on 8 August 2018.  For the reasons stated in [169] to [197] of the decision, the Board did not find the applicant a credible witness. It was accepted that there had been conflict between the applicant’s family and GK’s family ant the two sides used firearms to shoot at each other and both families had made complaints to the police.  However, the Board did not accept the applicant’s case that he became the target of harm/kill at the end of 2010 nor the GK family are rich and politically powerful.  Despite the applicant had jumped bail in relation to the pending criminal proceedings, the Board did not see it as a reason that he would be tortured by the Pakistani police upon his return to Pakistan. Further, relevant COI indicated a reasonable level of state protection is available and internal relocation is a reasonable option.  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 [13] of the CALL-1 Form, he advanced the following grounds for his intended challenge:

(1)  Procedural impropriety/unfairness - failure to consider relevant evidence or investigate the country of origin information of Pakistan.

(2)  Erred in law in that the Board failed to find that his enemies did not come within the meaning of populace; the assaults amounted to torture; in rejecting hearsay evidence.

(3)  Failed to apply high standards of fairness and the hearing bundle was without translation and also it relied upon sources of news not officially recognized or were hearsay resulting in it speculation.

6.  The Judge heard the case on 14 November 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 [14] to [18] of the CALL-1 Form:

“14.  The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the adjudicator. His lawyer had explained the Director’s Decision and the interpreter had explained the Board’s Decision to him.

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

16.    In Nupur Mst v Director of Immigration[2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court. the applicant cannot complain that the Board had not considered the evidence which he/she did not adduced at the appeal hearing unless the Board has the duty to elicit such evidence on its own volition.

17.    All those grounds above will not assist him as some of them are his opinions without any evidence or particulars in support of them, the others are simply not relevant to the findings of the facts by the Board.

18.    The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.”

The Appeal

7.  On 10 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 [2] 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 [14] and [15] of the CALL-1 Form, confirmed with the applicant if he understood 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 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.

[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.