SAMAD TARIQ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 46/2019

[2019] HKCA 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 46 OF 2019

(ON APPEAL FROM HCAL 30 OF 2018)

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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

1.1.   This is an appeal by Mr Samad Tariq (“the appellant”) from an order of DHCJ Bruno Chan (“the judge”) given on 25 January 2019 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)¹. 

1.2.   The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 15 December 2017 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his home country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decisions of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a Pakistani national born in 1978 in Punjab, Pakistan.  From 1995 to 2007, he assisted in his father’s business.  He entered Hong Kong illegally from Mainland China on 25 January 2008.  He was arrested by the police on 22 May 2008 and raised his claim for non-refoulement protection by way of written representation on 28 May 2008.  Subsequently, the appellant lodged his non-refoulement claim form dated 11 July 2016.

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, the appellant’s alleged claim was based on his fear that if he was returned to Pakistan, he would be harmed or killed by Mazher Iqbal (“MI”) and Arshad Qadri (“AQ”).

-   In early 2007, the appellant met MI and AQ at the mosque in their village. 

-   Around January/February 2007, MI and AQ asked the appellant if he was Sunni or Shia.  He replied that he believed in the Qur’an.  MI and AQ were dissatisfied and threatened to kill him.  They continued to threaten him whenever they met at the mosque.  The appellant did not report this matter to the imam, or the police as he believed that the latter would not intervene in religious disputes.

-   Around the end of February 2007, the appellant saw MI and AQ on the street about 40 meters away.  He says MI shot at him.  The appellant was not hurt and ran away.  The appellant did not report this incident to the police either, as he believed that this was a religious dispute.

-   The appellant was scared and went to stay with his relatives in Islamabad, Karachi and Rawalpindi at the end of February 2007 or early March 2007. 

-   The appellant obtained a passport in his own name. 

-   The appellant was told by his family that since his departure, no one had gone to his home to search for him.  Nevertheless, he was afraid of being killed by MI and AQ.  The appellant left Pakistan in around September 2007 and travelled to Mainland China in late 2007 without encountering any problems.  After his departure, the appellant was told by his family that no one had come to the house to search for him.

-   The appellant considered that the Pakistan authorities would not protect him in religious disputes.  Also, he could not relocate to other areas of Pakistan because he would be accused of blasphemy due to his religious belief.

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.   What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.   “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.   “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.   What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decision

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director concluded that the appellant had failed to make out his claim as a matter of fact.  The Director rejected the appellant’s claim for reasons set out in a decision given on 17 January 2017 in respect of “BOR2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk (“the Director’s Decision”).

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB which held a hearing at which the appellant was present.  An interpreter was provided.  The appellant stated in his Notice of Appeal dated 26 January 2017 that religious terrorism was still at its peak in Pakistan.  His life would be in danger if he went back to Pakistan and he would be murdered.  At the hearing, the TCAB asked the appellant various questions about his religious belief, his background, the alleged dispute with MI and AQ and the shot allegedly fired by MI. 

7.2.   The appellant gave answers which, the TCAB found, showed that he was not a witness of truth.

7.3.   Essentially, the TCAB found that the appellant did not have an argument with MI and AQ, and he was never threatened, assaulted or shot at.  He did not travel to Islamabad, Karachi or Rawalpindi to escape harm.  And that even taking the appellant’s claims at their highest, he has not suffered anything more serious than verbal threats, and had not suffered any physical harm.  He had failed to show that any treatment he would face would attain a minimum level of severity, or that there is a genuine and substantial risk of the alleged ill-treatment, or that there is any state acquiescence. The TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”).   

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The appellant set out his grounds in his affirmation in support which were summarized as follows:

(1)   lack of legal representation at the hearing before the TCAB;

(2)   lack of language assistance at the hearing before the TCAB; and

(3)   lack of fair hearing as the TCAB failed to give reasons for not requiring the attendance of the Director at the hearing.

The Judge’s Decision

9.1.   The appellant was assisted by the court’s interpreter and appeared at the hearing before the judge. 

9.2.   As mentioned earlier, the judge refused leave for reasons set out in his Decision, in particular

“10.   For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: 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.

11.   The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12.   As for his complaint under ground (2) of not being provided with language assistance in his appeal to the Board, as it was a rehearing of his claim as before when as noted above he already had legal representation during the process before the Director, and that he was assisted by an interpreter during his appeal hearing before the Board when he never raised any issue over interpretation of the basis of his claim which was uncomplicated and straightforward, nor did he seek any assistance form the adjudicator for further time.  As such I do not find any merit in this complaint of the applicant.

13.   As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.

14.   The fact is that it has been established by both the Director and the Board in their 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.

15.   In the premises and having proceeded to consider 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.

16.   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.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 31 January 2019, the appellant appealed the judge’s order to this court.  The appellant stated the following grounds in the Notice of Appeal:

“1. The Deputy Judge has failed to consider the significance and level of unfairness the lack of language assistance has on me as a litigant.

2. There has been no assistance in interpreting the content of the hearing bundle to me, even till now the Judgment has not been read to me. On the day of the hearing, I was asked to leave the court room in less than 5 minutes because all the Deputy Judge said was that he has read everything and he would come up with a decision soon. However, none of the contents have been verified with me. This is particularly important as the Adjudicator of the Torture Claims Appeal Board has been the one and only authority that has made a finding on credibility and that should be subject to review at some stage. If the Director of Immigration did not make such finding then the Court should.

3. This echoes with my argument that the Director should have been attending the appeal to confirm such findings on credibility.

4. Furthermore, the Adjudicator arranged an oral hearing on a much later date than the date I confirmed my instructions in the Non-Refoulement Claim Form, yet such has not been read back to me to refresh my memory. It is unfair to attack me on credibility when time has lapsed and my experience has been so traumatic that I chose not to focus on the bad memories and hence would have forgotten about some parts.

5. I hereby request for the translation and language assistance required for the better understanding of my case as this is one of the primarily rights of a litigant.  I also request for an oral hearing with an interpreter arranged.”

Legal Principles

11.  It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.   The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2.   When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration²and we will not repeat them here.  

11.3.   Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong³.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall⁴are satisfied.   Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed his skeleton submissions on 6 May 2019.  In his skeleton submissions, he mainly repeated his grounds of appeal which will be dealt with below.

Hearing before the Court of Appeal

13.  At the hearing before this court, the appellant added that the TCAB had made its decision only based on information from the internet, which was very different from the actual situation.  However, this was not a ground raised before the judge.    

Discussion

14.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

14.1.   With respect to the appellant’s grounds no. 1, 2 and 5, he had advanced these grounds before the judge at his application for leave for judicial review.  As correctly pointed out by the judge, there is no absolute right for the appellant to have free legal representation at all stages of the proceedings.   In any event, an interpreter was present at the court hearing.  The lack of translation service and legal assistance for preparation of his appeal are not proper grounds of appeal.  

14.2.   In relation to the appellant’s ground no. 3, he had verified the information relevant to his claim for non-refoulement in his Non-Refoulement Claim Form in letters and during his interview with the Immigration Department.  At the rehearing before the TCAB, the TCAB questioned the appellant afresh in considerable detail as shown in the TCAB’s Decision.  The TCAB found that the appellant was not a credible witness after considering his answers in great detail.  The presence of the Director was unnecessary as he would not have given any evidence.

14.3.   With regard to the appellant’s ground no. 4, this was not argued before the judge and no reason has been given by him as to why he should be allowed to do so now. The same applies to the argument raised before this court regarding reference to the internet.  The appellant is not entitled to argue new points at this stage of the proceedings which he had not raised before the judge.

14.4.   In conclusion, we can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.