RE MEHMOOD SAJID

CACV 134/2022, [2024] HKCA 373

On Appeal From [2024] HKCA 138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 134 OF 2022

(ON APPEAL FROM HCAL NO 2538 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  By a judgment dated 7 February 2024 ([2024] HKCA 138) (“the Judgment”), this court dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 1 April 2022 ([2022] HKCFI 720), whereby the Deputy Judge refused his application for leave to apply for judicial review.

2.  On 19 February 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the Judgment.

3.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

5.  In his Notice of Motion, the applicant again repeated that if refouled he would be harmed or killed by his enemies and that internal relocation would not be possible as it would cause immeasurable hardship to live without his family members.  He also alleges that he has a son who is now studying in Hong Kong and that he wants the best for his son.

6.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 4 March 2024.  In those submissions, he alleged that the Board overlooked the dangerous situation in Pakistan.  He further alleged that he would have to take care of his son and refoulement would be tantamount to “child abuse”.  He also alleged that the human rights situation in Pakistan is generally poor and Pakistan is notorious for police extra-judicial killings.  He also claimed that internal relocation would not be possible as he has no family or relatives who could support his life.  In the interests of him and his child, he requested that his application be granted.

7.  In our view, the applicant’s application is plainly devoid of merit.  His assertions are all vague, bare and unsupported by any specific particular or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  Save the assertions pertaining to his son, all his allegations are essentially a mere regurgitation of those submissions he previously made before this court in his appeal, which we had already considered and rejected: see [11] ‑ [18] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re‑running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3].  More importantly, he fails to identify any specific error in the Judgment.  Clearly, his assertions do not constitute proper grounds of appeal.

8.  Insofar as his son is concerned, those submissions are new and not before the Judge or this Court in his earlier appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay[2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh[2021] HKCA 870 at [7].  We see no basis to entertain these submissions at this late stage of proceedings.

9.  Further and in any event, even taking them at their highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

10.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

11.  For these reasons, the Notice of Motion is dismissed.

CACV 134/2022, [2024] HKCA 138

On Appeal From [2022] HKCFI 720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 134 OF 2022

(ON APPEAL FROM HCAL NO 2538 OF 2018)

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_______________

_______________

J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 1 April 2022, by which the Deputy Judge refused the applicant’s application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 720).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 7 November 2018 (“the Board’s Further Decision”), dismissing the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 11 January 2017 (“the Director’s Further Decision”) rejecting the applicant’s non-refoulement claim on the basis of BOR2 risk[1].

3.  On 13 April 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we have proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Pakistan.  He last entered Hong Kong illegally by boat on 23 March 2008 and was arrested by the police on 8 October 2009.  On 10 October 2009, he raised a torture claim which was later taken by the Director as a non-refoulement claim on the basis that if refouled, he would be harmed or killed by the family of a friend, Haroon, who blamed him for Haroon’s death. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [4] of the Leave Decision.

5.  By a Notice of Decision dated 23 September 2014, the Director dismissed his non‑refoulement claim on all applicable grounds including torture risk^[2], BOR3 risk^[3] and persecution risk^[4] (“the Director’s First Decision”).  The applicant then appealed against the Director’s First Decision to the Board.  The Board heard the matter on 13 August 2015.

6.  By a written determination dated 1 March 2016 (“the Board’s First Decision”), the Board dismissed the applicant’s appeal.  In essence, after considering the available evidence, the Board found the applicant to be an evasive and highly untrustworthy witness.  The Board also found that it was not logical for the applicant not to report the matter to the police given that, on the applicant’s own case, he had been assaulted and accused of murder and had good alibi evidence to show that he had not committed the murder.  The Board also found that there was no reliable evidence that the applicant was wanted by the police in Pakistan for the murder of Haroon.  The Board noted that the applicant had not made any claim for refugee status or for non-refoulement protection upon arriving in Hong Kong and only did so after his arrest 18 months later on 8 October 2009.  Having considered the evidence in totality, the Board found no real or substantial risk that the applicant would suffer the harm as alleged if refouled. Accordingly, his appeal was dismissed on all applicable grounds including torture risk, BOR3 risk and persecution risk.

7.  By the Director’s Further Decision, the applicant’s non‑refoulement claim was also refused on the basis of BOR2 risk.  The applicant then lodged a petition against the Director’s Further Decision on 1 March 2016.  Whilst the applicant alleged that he had received no correspondence from the Director prior to the Director’s Further Decision inviting him to submit additional facts or information relating to his non‑refoulement claim, the Board considered that the applicant had the opportunity but failed to add any relevant information relevant to his claim in his petition.  Having considered his claim based on the previous findings, the Board concluded that the applicant had failed to establish his claim on the basis of BOR2 risk and dismissed his petition.

The Leave Decision

8.  On 12 November 2018, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Further Decision, and relied on the following grounds as concisely summarised by the Deputy Judge at [11] of the Leave Decision:

(1)    No reasonable basis for rejecting the applicant’s claim;

(2)    Failure to consider the extended form of state acquiescence;

(3)    Failure to fully consider all the relevant COI in assessing his claim;

(4)    Irregularity of the decision-maker being a different person than the interviewing officer;

(5)    Procedural impropriety/unfairness in failing to investigate into the COI of Pakistan;

(6)    Irrationality in failing to place weight on relevant COI and instead placed weight on irrelevant information;

(7)    Irrationality in failing to consider that there is a consistent system of human rights violations in Pakistan;

(8)    Irrationality in failing to consider if state protection exists in Pakistan;

(9)    Procedural impropriety in failing to call for psychological and / or psychiatric reports or evaluations;

(10)   Procedural impropriety in applying the incorrect standard of proof; and

(11)   No proper basis for considering that internal relocation was available to the applicant.

9.  An oral hearing was held before the Deputy Judge on 3 March 2022 which the applicant attended in person and was assisted by an Urdu interpreter.

10.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review.  His reasons were set out in detail at [12] ‑ [17] of the Leave Decision:

“12.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or what relevancy was state acquiescence to his case, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or how did the Adjudicator apply the incorrect standard of proof. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, nor would they be relevant to his BOR 2 Claim when the basis of his claim even on his own case simply did not engage the BOR 2 ground, while the dealing of his appeal before an adjudicator who was a different person from the interviewing officer in his screening process before the Director was actually a safeguard for fairness in the second-tier process of his claim by the Board of which I fail to see how he could in any way be prejudiced or adversely affected. As such I do not find any of his grounds reasonably arguable for his intended challenge.

13.  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.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 44 - 61 in its first decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and having rightly rejected the credibility of his claim in its first decision, there is simply no basis for the Applicant to challenge the Board’s second decision regarding his BOR 2 Claim when he also failed to submit any new evidence or information which may assist or advance his claim. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in either of its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

15.  Furthermore, the fact is that it has been established by the Director in his first decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong under any of the applicable grounds: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  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 any of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim under all the applicable grounds.

17.  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 Appeal

11.  On 13 April 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, he asked for an order requesting for leave to appeal and relied on the following grounds:

“I, Mehmood Sajid, filed for the appeal over my case and, the situation in Pakistan that constitutes to an error of judgment. I will be in grave danger if I should return to Pakistan. I would be framed or killed by the family of my friend who blamed me for his death.

I believe that my possible loss of life should be is a myth, when I returned back home. As a result, I request the court to grant leave to appeal. ” (sic)

12.  Pursuant to the directions of the Registrar of Civil Appeals dated 13 April 2022, the applicant lodged his written submissions on 27 April 2022.  In those submissions, he alleged that the Board had been insensitive towards his case and situation in Pakistan which constituted an error of judgment.  He further stated that he would be harmed by Haroon’s brother and tortured by the police because he was wrongly accused of murdering Haroon.  He referred to “the comments made by the Judge over [his] extended delay and the reason for performing the Judicial Review while being detailed (point 13, 14)” and that as a foreigner he had no idea of how and what to do.  He also stated that the human rights situation in Pakistan was poor and that Pakistan was notorious for police extrajudicial killings and the police killed suspected criminals to circumvent or overcome insufficient evidence, witness intimidation, judicial corruption and at times, political pressure.  He also claimed that the possibility of relocation was a myth.  He further claimed that his case was originally because of political problems and although he was not an important government official or famous dissident, his life should also be valued.

Discussion

13.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

14.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

15.  In our view, the applicant’s allegations had no substance.  At the outset, the applicant only challenged against the Board’s Further Decision in his present intended judicial review, and had made no challenge against the Board’s Decision.  On that basis alone, it was plainly correct for the Deputy Judge and the Board to come to the view that there was no basis for the applicant to challenge the Board’s Further Decision, when he failed to submit any new evidence or information which might assist or advance his claim.  His appeal plainly is a nonstarter.

16.  More importantly, it is noted that the applicant’s complaints in the present appeal are mainly directed at the Board and do not point to any error of the Leave Decision.  His complaints are also all general and vague without specific particulars or evidence in support.  They therefore do not constitute proper grounds of appeal.  See: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  General assertions of his fear if refouled did not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6].  This appeal must fail on this basis alone.

17.  Further, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: 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].  In our view, there plainly is none in the present case.

18.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.