Re Rahman Zaiwr Ur

CACV 164/2020

[2020] HKCA 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2020

(ON APPEAL FROM HCAL 289 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 the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL-1 dated 1 June 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 470.

2. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 2 February 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated respectively 7 August 2015 (“the Director’s First Decision”) and 24 October 2016 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3. The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4. By a letter dated 10 June 2020, the applicant gave consent to the appeal being heard by a two-member court.

A. Background

5. The applicant is a national of Pakistan. He entered Hong Kong illegally on 22 August 2014 and surrendered to the immigration department on 24 September 2014. He lodged a non-refoulement claim on 28 November 2014.

6. The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s First Decision, and paragraphs 4 - 18 of the Board’s Decision.

7. Briefly stated, the applicant claimed that he would be harmed or killed by his influential paternal uncle Muhammad Hilal (“MH”) due to a land dispute. MH intended to seize the land that was passed on to the applicant and his brothers by their late father. When they were little, MH harassed and assaulted their mother for the land. In 2002, MH shifted the target to the applicant as MH saw the applicant as his only obstacle to obtain the land. In the years of 2002, 2004 and 2005, the applicant was assaulted by MH and his associates with wooden sticks. In the last assault, the applicant was severely injured and hospitalized. Out of fear, in 2007, he fled to Malaysia. While staying there, the applicant was told by his mother and neighbours that MH had been looking for him everywhere. Worrying that it was not safe to stay in Malaysia, the applicant came to Hong Kong for protection in 2014.

B. The Director’s Decisions and the Board’s Decision

8. The Director assessed the BOR3 risk[1], the persecution risk[2], and the torture risk[3] in the Director’s First Decision while the Director’s Second Decision covered the assessment of the BOR2 risk[4]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

9. The applicant appealed the Director’s Decisions to the Board. A hearing for the appeal was fixed on 29 December 2016 but the applicant failed to attend as scheduled. The Board then proceeded to consider his appeal on papers. Having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

10. The Board first considered the information provided by the applicant in his non-refoulement claim form (“NCF”). It found that there were inconsistences of material facts in his answers in the NCF with those given in his interview with the immigration department. These discrepancies remained unclarified and unsolved due to the applicant’s absence from the hearing. As a result, the Board found that the information given in his NCF was untruthful and incredible (paragraphs 26 - 41 of the Board’s Decision). Alternatively, the Board found that internal relocation and state protection were both available to the applicant (paragraphs 43 - 52 of the Board’s Decision). Thus, the Board dismissed his appeal.

C. The Deputy Judge’s Decision

11. The applicant filed a Form 86 on 23 February 2018 seeking leave to apply for judicial review against the Board’s Decision. The grounds of review stated in his supporting affirmation filed on the same date were lengthy. They were categorised under grounds of irrationality, procedural impropriety and unfairness. Some of the grounds were repetitive. They were succinctly summarized by the Deputy Judge at paragraph 12 of the Deputy Judge’s Decision as follows:

“12. On 23 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) irrationality in failure to consider the concept of state acquiescence;

(2) procedural impropriety in making insufficient inquiry;

(3) failure to provide adequate reasons as to decision made;

(4) procedural impropriety/unfairness in failure to investigate into the Country of Origin Information of Pakistan;

(5) irrationality in failure to place weight on relevant information and/or selectively placing weight on irrelevant information;

(6) irrationality in failure to consider a consistent system of human rights violations;

(7) irrationality in failure to consider if state protection exists in Pakistan;

(8) irrationality in placing weight on irrelevant matters or on inaccurate or incorrect facts;

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

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

(11) no reasonable basis for rejecting the credibility of his claim;

(12) failure to consider the extended form of state acquiescence;

(13) failure to fully consider the COI reports in assessing risk to the Applicant;

(14) irregularity of the decision-maker being a different person than the interviewing officer; and

(15) no proper basis for consideration of internal relocation.”

12. The applicant did not request an oral hearing. After considering the available documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave. He set out the following reasons in paragraphs 13 - 18 of the Deputy Judge’s Decision:

“13. 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 applied to his case or how the Board or the adjudicator had erred in the decision, or in what way was the concept of state acquiescence or its extension relevant to his case, or how did the adjudicator fail to apply the correct test on credibility or to take into account 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. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of which I am unable to find any basis or merits in any of these...