CACV 162/2022
[2022] HKCA 1264
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 162 OF 2022
(ON APPEAL FROM HCAL NO 195 OF 2019)
_____________________
BETWEEN
| RATHOR TANVEER HUSSAIN | Applicant |
| and | |
| TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| and | |
| DIRECTOR OF IMMIGRATION | Putative
Interested Party |
_____________________
Before: Hon Yuen JA and Lisa Wong J in Court
Date of Written Submissions: 8 July 2022
Date of Hearing: 8 August 2022
Date of Judgment: 13 September 2022
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J U D G M E N T
___________________
Hon Yuen JA (giving the Judgment of the Court):
Introduction
1. On 14 April 2022, DHCJ K.W. Lung (“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 14 January 2019. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 6 March 2018.
2. On 26 April 2022, the applicant filed a Notice of Appeal against the Judge’s decision.
3. In compliance with the directions of the Registrar of Civil Appeals given on 31 May 2022 and Practice Direction 4.1, the applicant lodged his skeleton argument on 8 July 2022.
Background
4. The Applicant is a national of Pakistan. He entered Hong Kong illegally on 17 March 2015. He surrendered to the Immigration Department on 24 March 2015. He lodged a non-refoulement claim by way of written submissions dated 15 July and 4 August 2015 alleging that if refouled, he would be harmed or even killed by his cousin Zameer Hussain (“Zameer”) who wanted to occupy the applicant’s land without his consent. The factual background of this case is succinctly summarized by the Judge in [5] of the Form CALL-1 ([2022] HKCFI 1057).
5. By a Notice of Decision dated 6 March 2018, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.
6. The applicant lodged an appeal to the Board against the Director’s decision. The appeal was heard on 8 November 2018 and by the decision dated 14 January 2019, the Board rejected the appeal/petition and confirmed the Director’s decision. Having considered the applicant’s evidence, for the reasons set out at [39] to [47], the Board accepted that prior to his departure from Pakistan, he was involved in a dispute with his cousin Zameer over their respective shares of the family land; however, it did not accept that Zameer intended to kill the applicant as he had ample opportunities to do so, and it found the applicant had exaggerated the level of Zameer’s attacks on him [41]. It also noted that the applicant’s behaviour, such as telling many of his friends where he went after the alleged incident of Zameer firing shots outside his house, was inconsistent with someone who was genuinely trying to hide from Zameer [42]. Thus, the Board refused to accept that he went to Lahore or to Hong Kong to avoid the claimed risk of harm from Zameer. The possibility of Zameer being able to locate the applicant in Lahore, a city of 11 million people, was remote [42] and the applicant could relocate to other areas of Pakistan [45]. Above all, the land dispute was private in nature without any state involvement [45]. For the aforesaid reasons, his non-refoulement claim failed on all applicable grounds.
Decision of the court below
7. On 21 January 2019, the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board. In his affirmation in support of his application, he reiterated that his uncle would kill him if he returned to his country, the authorities will not protect him and relocation is not possible.
8. The applicant did not request for an oral hearing and the Judge disposed of the application on paper. By the decision dated 14 April 2022, the Judge refused to grant leave to the applicant to apply for judicial review. The reasons for the refusal were set out at [12] – [17] of the Form CALL-1 as follows:
“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1).… …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.”
15. The Board, for the reasons that it had given, refused to accept the applicant’s evidence on the facts of his case. The applicant has not raised any valid ground to challenge the Board’s Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”
Appeal to this Court
9. On 26 April 2022, the applicant filed his Notice of Appeal against the Judge’s decision. He advanced the following grounds of appeal:
(1) The Director had failed to appreciate or give proper weight to the presence of state acquiescence in the applicant’s case and it led to an unfair outcome of rejecting the applicant’s non-refoulement claim.
(2) The Director, the Adjudicator and the Court had failed to take such argument into account or the Director had failed to give sufficient weight to such argument before reaching the decision.
(3) The Adjudicator had failed to make sufficient enquiry before finalizing the determination. The Adjudicator stated that the applicant had failed to advance any credible evidence to prove the material elements of his claim.
(4) The Adjudicator had failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.
(5) The Director referred to relevant country of origin information (“COI”) which suited his pre-conceived conclusion. This is a clear case of unfair attitude shown by the Director which should render the decision void.
10. In the applicant’s written submission, he quoted passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness. He referred to “high standards of fairness” applicable to the determination of a non-refoulement claim, and alleged that the Board had acted in a procedurally unfair manner without properly assessing his credibility. The written submission further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge. However, he did not explain or elaborate how those authorities and provisions applied to his case. At the hearing before this court, he only added that there were four brothers in Zameer’s family, a matter which is irrelevant to the appeal.
Legal principles
11. 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 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
12. The applicant failed in his Notice of Appeal and written submissions to provide any valid ground of appeal against the Judge’s decision or to identify any specific errors or any other specific potential grounds for reversing the Judge’s decision. He had nothing to add at the hearing before this court. He failed to state what enquiries should have been made. He has not indicated when (if ever) he asked for time to adduce further evidence, and what evidence he would have adduced. In any event, this was not a ground which he had raised in his Form 86. As mentioned earlier, the appeal before this court is not to provide an opportunity for a rehearing.
13. As explained in [11] of this judgment, the role of the Court is not to provide a further avenue of appeal against the decisions of the Director and/or the Board. Assessment of evidence, COI and risk of harm is within the province of the Board and the Court would not intervene unless there is a valid public law ground. It was the Board’s finding of fact that the applicant had exaggerated the level of attacks on him by Zameer and the dispute was private in nature without any state involvement. It was entitled to make those findings on the evidence. We see no error of law or procedural unfairness or any irregularities in the Board’s findings.
14. Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny. We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave.
Order
15. For the above reasons, this appeal is dismissed.
| (Maria Yuen) | (Lisa Wong) |
| Justice of Appeal | Judge of the Court of First Instance |
The applicant, unrepresented, appeared in person
[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.
[5] The correct citation should be ST v Betty Kwan.