RE ALI AMANAT

CACV 117/2022

[2022] HKCA 1170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 117 OF 2022

(ON AN APPEAL FROM HCAL NO. 2379 OF 2018)

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JUDGMENT

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

1.  On 20 May 2022, this Court handed down our judgment ([2022] HKCA 673) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) made on 25 March 2022.     

2.  On 16 June 2022, the applicant filed a notice of motion applying to set aside our order of 20 May 2022.  The notice of motion asked for a reconsideration of the case with an oral hearing, and set out the following grounds in support of the application:

“(1) The Judges have erred in determining that the Judge had not failed to appreciate the significance of my non-refoulement claim. The lack of assistance provided to me is an error of law or procedure, evidence of procedural unfairness, or failure to adhere to a high standard of fairness. This is because non-refoulement claims are life and limb cases and should be assessed cautiously, considering my vulnerability and disadvantage.

(2) I was unaware that I should have consented to the disposal of this appeal by hearing on paper because the person who helped me to submit this appeal and submission is not a professional person but a friend who does not know any legal jargon. Now another friend is trying to help me but even this person is just trying his best to elaborate on my case problems, and we are still not able to find the legal errors in the decisions of the Board and the decision of the Director,

(3) It is unfair to expect an uneducated person to know the law of a foreign country, would be able to find easily legal advice, or legal representative, or go through a legal process while do not have any resource of income and not eligible to do so. A non-refoulement claimant is a vulnerable individual and will require reasonable assistance from time to time, yet such was not provided to me and was used against me when I could not comply.

(4) I was deprived of the right to make full grounds for appeal. By not having the Determination translated or read back to me, I could not have understood the Determination to the fullest, and is unfair to me. I had to submit everything in English because the Court would not accept grounds written in my language, otherwise, I would have done that.

(5) Instead I had to ask for help without having the ability to verify if everything is correct and true. The fact that oral hearings were arranged with interpreters means that the Court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment. This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal.

(6) I reiterate the authorities, despite knowing of my language incapability, have not made reasonable arrangements to enable me to understand the content of the judgments and thereby deprive me of the right to seek a further avenue of appeal. This is a wrongful exercise of case management power and I verily believe this should be looked into carefully as case management power should extend to how a judgment is delivered.

(7) I was able to file documents in English through a friend who helped me to prepare Form 86 and the affirmation for judicial review. But it does not mean that apparently, I always can find someone to assist me with interpretation/translation and to deal with English documents. As such I am only making this affirmation to the best of my knowledge.

(8) A judgment that has been made with the lack of evidential consideration of issues raised in Court should be deemed an error judgment.

(9) If a litigant has not been informed fully of his rights and is allowed to be beard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place.

(10) The Judges should not determine the Prospect of success at this stage as I have been deprived of making an entire appeal and putting forward my grounds fairly without the help of language assistance.  It is not the Judges’ power to determine what I am putting in as grounds and what I am not, and therefore administratively speaking the Judges could not have possibly made a finding on the prospect of success based on this ground.”

3.  The applicant has put in a written submission to support his application for a reconsideration of his case based on unfairness and unreasonableness.  In gist, his arguments are:

(1)  The Court has not considered his grounds of appeal thoroughly.

(2)  It is not true that he understands the Board’s decision. While his friend had explained it to him, he cannot understand the legal jargon without the help of legal representative.  The Court should not have expected him, as a layman, to comment on the findings when he cannot understand the jargons. 

(3)  He could not request an oral hearing in the notice of appeal as he was unaware of it, and the person who helped to submit the documents was not a professional person.

(4)  The lack of language assistance is discriminatory and unlawful as it deprives him of the right to lodge a proper appeal and puts his case at the risk of being dismissed due to lack of grounds.  The authorities should take into account that English is not his first language, he has no right to work in Hong Kong and thus cannot hire proper help, and he is traumatised by the problems in his home country. 

(5)  The decision of the Board was never translated or read back to him.  It is the basic right of a litigant to understand what was decided against him so that he can make a full review.  Deprivation of such right is equivalent to deprivation of the right to seek further avenues of appeal or review.

(6)  The same goes for the Judge’s decision.  Without knowing the reasons, he was deprived of a reasonable opportunity to point out errors in full.  As a result, the burden was shifted to the Judges to help determine the grounds.  It is not true he can find people to assist with interpretations/translations and dealing with English documents at all times. This also does not mean the Court or the Board does not owe a duty of care to self-represented litigant.

4.  We note that the applicant has asked for an oral hearing to deal with this application.  However, having considered the notice of motion and the written submission and in view of the total lack of merits of the application, we consider it is appropriate to deal with the application on the papers without an oral hearing, and have proceeded to determine the application on the basis of the documents in the case.

5.  The facts and background of this case have been set out in our judgment.  We will not repeat them.

6.  For the reasons set out below, the applicant’s application by notice of motion (and reiterated in his written submission) for a reconsideration of his appeal or case is out of order and plainly untenable.

7.  When the applicant filed his notice of appeal on 12 April 2022, he had signed a written confirmation which states that: “I consent to the appeal to be disposed of on paper by the Court without oral hearing.”  It is pursuant to his own election that this Court had proceeded to consider and determine his appeal on the papers without setting it down for an oral hearing: see [2] of our judgment. 

8.  By our judgment, the applicant’s appeal has been determined and concluded.  This Court’s order was perfected and sealed, and a copy had been sent to the applicant.  In the circumstances, this Court does not have jurisdiction to re-hear or re-consider the appeal.  The notice of motion ought therefore to be dismissed.

9.  We would further point out that:

(1)   Given that it is the applicant’s own election to have the appeal disposed of on paper without an oral hearing, the contention in the notice of motion and the written submission that he and his friend did not know that he had to request for an oral hearing is entirely misplaced; and

(2)   The complaints about lack of language and legal assistance were never raised in the application for leave to apply for judicial review, despite he had advanced numerous grounds in support of the application (see [8] of our judgment).  Nor were they raised in the appeal (see [10] and [11] of our judgment).  The present application to re-open the appeal on entirely new grounds is not only out of order as a matter of jurisdiction and procedure, but is also an abuse of process.   

10.  For the above reasons, we dismiss the notice of motion.  

CACV 117 /2022

[2022] HKCA 673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 117 OF 2022

(ON APPEAL FROM HCAL NO 2379 OF 2018)

__________________________

__________________________

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J U D G M E N T

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

1.  The applicant lodged a Notice of Appeal on 12 April 2022 against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 25 March 2022[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 her non‑refoulement protection claim.

2.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal. He lodged his written submissions on 26 April 2022 pursuant to the directions of the Registrar of Civil Appeals.

The applicant’s claim

3.  The applicant is a national of Pakistan aged 43. He entered Hong Kong illegally and was arrested by the police on 18 May 2015. He raised a non-refoulement claim based on his fear of being harmed or killed by his uncle arising out a land dispute.

4.  In gist, the applicant claimed that his father and his uncle inherited a piece of land from his grandfather. His uncle wanted to exchange his portion of the land with his father’s, which was considered to be more valuable. After his father, acting on the applicant’s advice, refused the proposed exchange, his uncle made death threats to the applicant, and also assaulted him together with his sons. The applicant fled to Lahore and worked there. After some ten months, he learnt that his uncle and cousins were still looking for him. Fearing for his safety, he departed for mainland China from where he sneaked into Hong Kong.

The Director’s decision

5.  By a Notice of Decision dated 22 January 2018, the Director rejected the applicant’s non-refoulement claim having regard to all the applicable grounds, including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

6.  The Director assessed that the level of risk of harm the applicant would face is low and the evidence did not show that the uncle had real intention to harm or kill him. The Director also found that the applicant’s problem was a private family dispute that had nothing to do with the government or authorities. The Director held that the availability of state protection and internal relocation alternatives would further lower or negate the level of risk.

The Board’s decision

7.  Their appeal against the Director’s decision was heard before the Board on 31 August 2018. By a decision dated 18 October 2018, the Board dismissed the appeal. Primarily, the Board found significant discrepancies in the applicant’s account that he could not properly explain. The Board was of the view that he had exaggerated his claims in order to advance a claim for non-refoulement protection. The Board assessed the risk of harm to be low and was a localized one, which would be further reduced or negated by the availability of internal relocation alternatives. The Board concluded that he failed to show he was entitled to non-refoulement protection on any of the applicable grounds.

The intended judicial review

8.  The applicant filed a Form 86 and affidavit on 29 October 2018 to seek leave to apply for judicial review against the decisions of both the Director and the Board. In his supporting affirmation, he set out a number of grounds in support of his application, which the Judge had summarized in [8] of the Form CALL-1 as follows:

“(1) that the Director and the Adjudicator determined his case wrongly and failed to address the issues of his claim properly and instead came up with an assessment more or less of a template basis;

(2) that the Director wrongly assessed the Applicant’s risk of harm from his enemies upon his return to Pakistan as low due to availability of state protection despite the fact that the Applicant had been assaulted not once but several times, and that police protection was not available to him despite having made a FIR against his enemies that no action had been taken against them;

(3) that in terms of COI both the Director and the Board had wrongfully exercised their case management power by putting undue weight on reported availability of state protection when the same COI was quoted both for and against the Applicant’s assertion;

(4) that the Director rejected his claim simply for the sake of rejecting all non-refoulement claims and hence adopted a very uniformed approach in all of the conclusions;

(5) that the Board failed to apply high standards of fairness in assessing his claim and failed to give adequate reasons for its decision;

(6) that the Board failed to consider all the documentary evidence provided by the Applicant that it was unfair, unreasonable and illogical for the Board to still reject the credibility of the Applicant’s claims that they did not occur in Pakistan;

(7) that the Board was illogical, unreasonable and unfair for completely rejecting the credibility of the Applicant’s claims without any explanation as to what assertions that the Applicant was to have to explain being an example of the Board providing inadequate reasons for rejecting his claim and not dealing with the facts in a proper way or failing to take into account relevant matters in the Applicant’s claims; and

(8) that the Director quoted various COI that were first used to support the Applicant’s allegations as to state protection then to go against his allegations that the situation has improved in Pakistan without any explanation in terms of how the balancing exercise worked and what tests did the Director apply in concluding that the particular sections of the COI outweigh the others.”

The Judge’s decision

9.  The Judge heard the leave application in an oral hearing. On 25 March 2022, he dismissed the application and gave his reasons at [9- to [13] of the Form CALL-1 as follows:

“9. [The grounds] are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to apply high standards of fairness in their assessment of his claim, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, nor do I find any basis for his intended application either.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The grounds of appeal

10.  The applicant appealed the Judge’s decision to this Court. In the Notice of Appeal dated 12 April 2022, she stated by way of grounds of appeal that:

“The High Court did not find any error of proceeding [sic]. I want to show some error. I did not get justice.”

11.  In his written submission, the applicant stated that his life was threatened in his home country, and that he could not return even though he had wanted because of his enemy’s activity.

Legal Principles

12.  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.

13.  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 Country of Origin Information 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.

Analysis and disposition

14.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  The applicant has not identified any error in the Judge’s decision and reasons.

(2)  In any event, assessment of risks of harm is a matter for the Director and the Board, who are the primary decision maker. The Director and the Board had, for the reasons they gave, found the risk of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection. The applicant’s challenge to their decisions was considered by the Judge to be not reasonably arguable. In the circumstances, there is no basis for his assertion that his life would be threatened if he were to return to his home country.

15.  We have separately considered the decisions that the applicant seeks to challenge. We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review.

16.  For the above reasons, there is no merit in the appeal or the intended application for judicial review. Accordingly, we therefore dismiss the appeal.

The applicant, unrepresented, acted in person