CACV430/2020
[2021] HKCA 272
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 430 OF 2020
(ON APPEAL FROM HCAL 855/2018)
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| RE: | ALI BILAL alias BABAR ASHRAF | Applicant |
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Before: Hon Barma JA and ST Poon J in Court
Date of Hearing: 1 March 2021
Date of Judgment: 15 March 2021
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge C P Pang given on 24 August 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 10 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 9 February 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Pakistan. He entered Hong Kong on 19 June 2008 illegally and was arrested by the police on the same day. He lodged a non-refoulement claim on 21 July 2008.
3. The applicant’s claim was based on threats from members of an opposing political party. The details of the applicant’s claim have been summarised by the Board at [6] to [14] of the Board’s Decision.
4. By a Notice of Decision dated 9 February 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 4 April 2018, the Board dismissed the appeal on 10 May 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.
6. At [69] of the Board’s Decision, the Board found that the applicant’s case was not credible. The Board was also satisfied at [77] that the Pakistani government had no adverse interest in him. The Board was satisfied that the applicant was not at risk from any of the proscribed harms upon his return.
The judge’s decision
7. The applicant filed a form 86 on 17 May 2018 which contained no ground for seeking relief.
8. In his affirmation in support of the leave application dated 17 May 2018, the applicant deposed that:
“… I received you’re letter contained in the Notice of Decision that the Decision of the Board Adjudicator is final. I am writing this letter because I not satisfied and really understand about my case/status decision. I patiently waiting your response…”
9. By a letter dated 19 May 2020, the court invited the applicant to submit information including any submissions that he would like to make. The court then received a letter on 25 May 2020 from the applicant attaching the decisions of the Director and the Board. The applicant did not give any ground of judicial review in the letter ([10] of CALL-1 Form).
10. The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.
11. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [20] of the CALL-1 Form:
“11. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration[2018] HKCA 524 at paragraph 14. 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.
12. As the Director’s decision has been superseded by the Board’s decision, it is not susceptible to judicial review: Re Moshsin Ali[2018] HKCA 549. Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.
13. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the accounts of primary facts based on the major inconsistencies and contradictions in the applicant’s evidence. The centre piece of the applicant’s story was not proved. On the factual findings, there was no basis for the applicant’s fear.
14. As mentioned, assessment of evidence/ primary facts and the risk of harm are within the province of the Board and the Director, this court will not interfere with the decisions unless there is a public law ground for the Court to do so.
15. The applicant did not provide any particulars as to how the Board was unfair or unreasonable in the public law sense.
16. The Board with the benefits of hearing the applicant’s oral evidence rejected the non-refoulement claim essentially on its adverse finding on the applicant’s credibility for the thorough and detailed analysis and reasoning set out in its decision. I do not find any reasonably arguable basis to challenge the findings of the Board.
17. It is noted that the Board engaged in a joint endeavour with the applicant and considered all relevant criteria, gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately. There cannot be any criticism of its determination which is eminently reasonable.
18. The applicant had delayed the screening process by asking for extension of time to return the completed non-refoulement claim form and defaulting the screening interviews without proof of his claimed medical condition. Given all the circumstances, I do not find the Director proceeding to consider the applicant’s claim on the basis of all the information and material available to him unfair or unreasonable. In any event, the applicant’s claim was considered by the Board fairly by way of a re-hearing of his evidence in an oral hearing.
19. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness.
Disposition
20. For the reasons given, there is no realistic prospect of success in the applicant’s intended application. I accordingly refuse to grant leave to apply for judicial review.”
Grounds for appeal
12. In the Notice of Appeal dated 4 September 2020, the applicant contended that:
“1. Failure to consider my fear in my claim, why I would not return to my country in my claim.
2. Failure to consider the country of origin condition (COI) into the country of origin.
3. Failure to consider my claim under BOR 2 risk.”
13. In his skeleton submissions dated 4 February 2021, the applicant submitted that:
(1) the Board and the Director failed to comply with their duty to make sufficient inquiries into the country of origin conditions and adopted a passive approach in contravention of the high standards of fairness;
(2) the Board and the Director failed to take into account relevant consideration, or they took into account irrelevant consideration. They failed to give due regard to:
(a) the danger to his life upon his return;
(b) the fact that he is under severe mental distress from the possibility of returning to Pakistan and facing his enemies.
(3) his claim is not a personal or private dispute.
14. The applicant agreed by a letter of 4 September 2020 that the appeal could be heard by two judges. We heard the appeal on 1 March 2021.
Discussion
15. None of the complaints advanced in the Notice of Appeal had been given as a ground for judicial review in the court below. It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst[2018] HKCA 504, CAMP 524/2018 at §14(4)).
16. Further, the applicant failed to give sufficient particulars for any of the grounds of appeal. For example, he did not identify the alleged “fear” in his claim or the country of origin information material that was said to have been omitted from consideration by the Board and the Director. Those grounds are therefore bound to fail in any event.
17. The applicant advanced a number of grounds that are not related to any public law error in the Board’s Decision or the Director’ s Decision but they are instead related to why the Board and the Director should have reached a different conclusion on a number of factual issues.
18. We would only consider those grounds directed towards the Board’s Decision as the Director’s Decision had been overtaken by the Board’s Decision. This court has repeatedly held that 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. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The court should not usurp the role of 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. These grounds should also be dismissed for this reason.
19. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) | (ST Poon) |
| Justice of Appeal | Judge of the Court of |
| | First Instance |
The applicant appeared in person
[1] 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.
[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 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.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.