MEHMOOD MUFTI v. TORTURE CLAIMS APPEAL BOARD/ NON- REFOULEMENT CLAIMS PETITION OFFICE

CACV 194/2021

[2021] HKCA 1879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2021

(ON APPEAL FROM HCAL NO 1960 OF 2018)

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the Court):

1.  This court (Yuen and Chow JJA) handed down judgment on 20 September 2021 ([2021] HKCA 1356) dismissing the applicant’s appeal against an order of DHCJ To (“the Judge”) given on 16 April 2021 refusing to give the applicant leave to apply for judicial review in respect of his non‑refoulement claim (“the Judge’sDecision”).

2.  On 27 April 2021, the applicant had filed a Notice of Appeal to appeal against the Judge’s Decision.  As mentioned earlier, in our judgment of 20 September 2021, we dismissed the applicant’s appeal.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 5 October 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal on the following grounds:

(1)  There are questions of great general or public importance.

(2)  He was not given language assistance before the Torture Claims Appeal Board and the court.  No regard was given to the fact that English is not his first language and he cannot communicate without an interpreter.

(3)  It is unfair for a self-represented litigant not to have language support and the process is unfair and unjust.

(4)  The Court of Appeal erred in its decision that the Judge had not failed to appreciate the significance of his non-refoulement claim.  The lack of assistance was an error of law and procedure and a failure to adhere to the high standards of fairness.  The Court of Appeal rejected ground 1 of his ground of appeal by saying that “Ground 1 is a vague and general accusation without any specific grounds or elaboration.” The applicant could not elaborate his ground without legal assistance.

(5)  Such miscarriage of justice should not be taken lightly and is a solid threat to a fair judicial system.

(6)  There is a lack of language assistance and interpretation service.

(7)  The applicant could not understand the Court of Appeal judgment without translation.  He requested the court to read the decision to him and give him reasonable time to respond.

(8)  He was deprived of the right to “make full grounds of appeal” without language assistance.

(9)  The Court of Appeal was wrong in dismissing his appeal as questions of great general or public importance have all along been identified.

(10)  He sought a reconsideration of his case with an oral hearing.

4.  Pursuant to the directions made by the Registrar of Civil Appeals made on 5 October 2021 and Practice Direction 2.1, the applicant should lodge his written submissions on or before 19 October 2021.  He lodged it on 20 October 2021.  In his written submissions, he advanced the following:

(1)  The judgment did not make logical sense.

(2)  The Judges did not consider his grounds of appeal thoroughly.

(3)  He requested the Court of Appeal to reconsider his case and provide him with legal and language assistance.

(4)  He was deprived of his right to file a proper appeal for the lack of language assistance and it is discriminatory and unlawful.  The authorities did not take into account that he is traumatized by the problem in his home country, English is not his first language and he was not allowed to work in Hong Kong.

(5)  It is not true that he can understand the Board’s decision and the legal jargon without language and legal assistance.  The court should not expect him to comment on the findings.

(6)  The Board’s decision was never translated to him and it is his basic right to understand what was decided against him so that he can make full review.  To deprive him of such right means deprivation of the right to seek further avenues of appeal or review.

(7)  Without knowing the reasons of the Judge’s decision, he was deprived of the reasonable opportunity to point out the errors in full.  The Judge is obliged to help him to determine the grounds and it is not true that he could find assistance for interpretation or dealing with the English documents.  The Court and the Adjudicator owe a duty of care to self-represented litigants.

(8)  There is a lack of legal assistance for his appeal against the Director’s decision and for his leave application before the Judge.

(9)  His request for translation for better understanding was not considered by the Judge even though he had requested for reconsideration of his case based on procedural unfairness.

(10)  He requested that his case proceed to judicial review with suitable time and opportunity to be given to him as a self-represented litigant.

(11)  Upon receiving language assistance, he requested for a reasonable time to make further submissions in relation to the errors made by the authorities.

(12)  He requested for reconsideration of his case.

5.  The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, we proceed to determine this application on paper. 

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if 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.  His grounds of appeal based on the alleged lack of legal and language assistance had been dealt with by this Court at [12] to [14] of our judgment.  Having regard to the judgment of this court, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.    

8.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

9.  By reason of the above, the Notice of Motion filed on 5 October 2021 is dismissed.

CACV 194/2021

[2021] HKCA 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2021

(ON APPEAL FROM HCAL NO 1960 OF 2018)

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_____________________

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 16 April 2021, DHCJ To (“the Judge”) refused to grant leave to the applicant 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 7 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 28 July 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 27 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

3.  The Applicant is a Pakistani national.  He entered Hong Kong illegally on 15 October 2015 and was arrested by the police on the same day.  He raised his non-refoulement protection claim on 18 October 2015 on the basis that if he were refouled to Pakistan, he would be harmed or even killed by a person called Faisal over a land dispute.  The factual background of this case was succinctly summarized by the Judge in [6] – [12] of the Form CALL-1 ([2021] HKCFI 983).

4.  By a Notice of Decision dated 28 July 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

5.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 1 June 2018.  For reasons given in its decision of 7 September 2018, the Board dismissed the appeal.  In its decision the Board accepted the applicant’s account of events that his family had a land dispute with Faisal, the son of the village head who had sold the applicant’s father some land, and he cut Faisal with a sickle in self-defense when he was attacked by Faisal and his group.  However, the applicant’s evidence as to the connection between Faisal and Pakistan Muslim League (Nawzsharif), a political party, was extremely vague.[5] The Board did not accept the applicant’s claim about the influence and ability of Faisal’s family to harm him throughout Pakistan.  In this connection, it was noted that he had no problems whilst staying with his friend near Rawalpindi before he left Pakistan, showing he could relocate safely.  The Board was not satisfied that he would face a real risk of harm or ill-treatment as claimed if he were to return his home country[6] and thus rejected his non-refoulement claim on all applicable grounds.

Decision of the court below

6.  On 18 September 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, he claimed that his life would be endangered if he were to return to his home country.  In exhibit “A” attached to his supporting affirmation, he repeated the factual background of his case and urged the court to grant him the relief sought as his life is still in danger and he is scared to return to Pakistan.   

7.  The Judge heard the application on 7 April 2021 and by his decision dated 16 April 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [15] – [16] of the Form CALL-1 as follows:

“15. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(1)].

16.  The Court had rigorously scrutinized the Board’s Decision, the papers, grounds of application and the Applicant’s submissions.  The Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM.  The Board concluded that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Court found that the Decision of the Board was utterly without fault.  There were no errors of law or irrationality in its Decision or procedural unfairness.  The Court concluded that there is no substance in the grounds of this application.  Accordingly, the application is dismissed.”

Appeal to this Court

8.  On 27 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following grounds of appeal:

(1)   The Court did not exercise caution and diligence in handling his case and there was procedural unfairness.[7] (Ground 1)

(2)   There was a lack of language and legal assistance.  As he was unable to read and write in English and the Judge’s decision was not translated and explained to him, it was difficult for him to prepare the appeal without any assistance.  He further requested the Court for translation and language assistance and an oral hearing with an interpreter arranged and reserve his right to provide further submissions within reasonable time upon having the determinations read back to him.[8] (Ground 2)

(3)   It is procedurally unfair that there is no other revenue for a non-refoulement claim to seek an appeal against a decision made purely on the ground of credibility.[9] (Ground 3)

9.  In compliance with the Court’s directions of 2 July 2021, the applicant lodged his written submissions on 16 August 2021.  In his written submissions, he just repeated his complaints on the lack of legal and language assistance as mentioned in the Notice of Appeal.  At the hearing, he had nothing to add.

Legal principles

10.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(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 on appeal, which operates as a re-hearing, 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.  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

11.  Ground 1 is a vague and general accusation without any specific grounds or elaboration.  The Judge had duly set out the relevant factual background of his case and the findings of the Board’s decision and then gave his analysis and reasons for refusing to grant leave to apply for judicial review.  We found nothing amiss from his decision.  Ground 1 simply cannot stand.

12.  Ground 2 is devoid of merit.  The Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Securityv Sakthevel Prabakar (2004) 7 HKCFAR 187nor in the judgment in FB v Directorof Immigration HCAL 51/2007 prescribes that a non-refoulement claimant is entitled to an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah[2018] HKCA 14, Re Zahid Abbas[2018] HKCA 15, Re Tariq Farhan[2018] HKCA 17, Re Lopchan Subash[2018] HKCA 37, and Re Zafar Muazam[2018] HKCA 176.   

13.  Regarding the applicant’s complaint of lack of language assistance, we note that all the court documents in relation to the judicial review application and this appeal were written in English and well expressed, indicating either that the applicant is familiar with the English language or that he has access to such language assistance as was needed.

14.  Further, the Court had provided interpretation service to the applicant at the lower court hearing and the present hearing, and he has been provided with a reasonable opportunity to make his written and oral submissions for his case.  

15.  Ground 3 is misconceived.  As mentioned in [5] of this judgment, the Board did not rule against the applicant’s case on the ground of credibility but on the ground that his claim only involved a private land dispute without any state elements, he was vague on the connection between Faisal and PML(N), relocation was available to him, and that he failed to establish his case on all applicable grounds. 

16.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

17.  For the above reasons, this appeal is dismissed.