IQBAL ASIF v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 315/2018

[2019] HKCA 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 315 OF 2018

(ON APPEAL FROM HCAL 851 OF 2017)

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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 Iqbal Asif (“the appellant”) from an order of Deputy High Court Judge Bruno Chan (“the judge”) given on 29 June 2018 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 Appeals Board (“TCAB”) given on 6 February 2017 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his 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 national of Pakistan born in 1974.  He worked as an embroidery worker and waiter between 1988 and 2011.  He entered Hong Kong illegally on 29 June 2011 and was arrested by the police on 21 July 2011.  On 23 July 2011, he lodged his claim for non-refoulement.

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, what he alleged primarily was that if he were to be returned to Pakistan, he would be harmed or killed by the family of a police officer killed in an incident involving his brother’s illegal activities.  His allegations can be summarized below: 

-   Around 2009, the appellant’s brother, Shahid and his (Shahid’s) friends were involved in selling alcohol which was illegal in Pakistan.

-   One day at the end of 2010, Shahid and his friends were stopped by the police while delivering alcohol, and one of them opened fire at the police, resulting in the death of a police officer. 

-   The appellant was advised by a counsellor to move to Mirpur.  The appellant stayed in Mirpur for about a month and then moved to Islamabad where he stayed for a few months.  He received about 3 threatening phone calls from the brother of the killed police officer asking for Shahid’s whereabouts and threatening to take revenge and kill them.

-   The appellant claimed that the family of the killed police officer had a widespread network and was influential in his home area because they were from the Chaudhary clan and there was a Member of Provincial Assembly who was from the Chaudhary family.  The Chaudhary clan might harm him as the appellant did not vote for them during elections.  The appellant was also concerned that he might be sought by the police for involvement in Shahid’s illegal business.

-   The appellant left for the Mainland China on his own passport without encountering any problems during his departure.  He then entered Hong Kong illegally on 29 June 2011 at night in a boat with no navigation lights and without clearing immigration or customs.

-   The appellant alleged that he learned from his wife that there were still death threats from the family of the killed police officer and also people from the Chaudhary clan which he alleged were powerful and influential.

-   The appellant has not suffered any physical harm from anyone at any stage.

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: “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 Decisions

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 as the problem between the appellant and the family of the killed police officer or people of the Chaudhary clan was solely a private and personal dispute.  The Director rejected the appellant’s claim for reasons set out in a decision given on 8 September 2015 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 31 October 2016 in respect of “BOR 2 risk” (“the Director’s Decisions”).

The TCAB’s Decision

7.1.   The appellant appealed to the TCAB which held a hearing at which the appellant was present and chose to give oral evidence.      

7.2.   The TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, the TCAB found the appellant’s evidence incredible and his reasons for seeking non-refoulement unconvincing. The TCAB did not find him a credible person, eg he asserted he thought he had entered Hong Kong legally, even though he had not cleared immigration and customs, and he was travelling in a boat at night without navigation lights.  Even taking the appellant’s claims at their highest, he had only received verbal threats from the family of the killed police officer or the Chaudhary clan, and had not suffered any physical harm.  Insofar as he was wanted by the police for involvement in his brother’s illegal business, that would be a legitimate investigation which could not be a basis for a claim for non-refoulement.  In any event he had been able to leave Pakistan freely using his own passport and he had the option of internal relocation within the country.  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. 

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.  However since the appellant had enclosed the TCAB’s Decision in his notice of application for leave to apply for judicial review, the judge correctly took the application as being one against that Decision.  The appellant did not set out any grounds in his notice of application but in his affirmation in support, he stated 3 grounds: lack of legal representation at the TCAB hearing, lack of language assistance and lack of fair hearing.    

The Judge’s Decision

9.  The appellant appeared before the judge where an interpreter was present to assist him.  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 an interpreter inthe process of his appeal to the Board, for the same reason in relation to legal representation as above and that in my view it is simply impractical to provide an interpreter to the applicant throughout the process of his appeal to the Board, when he was already assisted by an interpreter at his oral hearing before the Board. There is simply no merit in this complaint of the applicant.

13. Regarding his complaint in ground (3) over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Directoror 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 no basis or merit in this ground of the applicant either.

14. 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.

15. 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 13 July 2018, the appellant appealed the judge’s order to this court.  The grounds of appeal may be summarized as follows:

(1)   The Judge erred in his decision not to grant leave.

(2)   There was procedural unfairness and the Director and the TCAB failed to apply high standards of fairness in considering and assessing his claim.

(3)   Lack of legal representation for the appeal at the TCAB.

(4)   Even if the authorities referred to by the Judge in his decision had held that a claimant does not have an absolute right to free legal representation at all stages of the claim for non-refoulement, he disagreed as those authorities were determined more than 10 years ago, and there were no separate stages at that time for determining the claim for non-refoulement.

(5)   He disagreed with the Judge’s comment that “the applicant already had the benefit of legal representation in presenting his case fully to the Director” as his BOR2 was determined without the Director of Immigration actually obtaining any additional information from him which he could not provide due to the lack of help from a lawyer and an interpreter.

(6)   It is unfair that the TCAB determined his claim on all grounds when he did not personally lodge the appeal regarding the Notice of Further Decision as he claims he had never received it.

(7)   He seeks a reconsideration of his case to be heard by way of 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 25 February 2019.

Discussion

13.1.   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. 

13.2. General assertions of a blanket nature in grounds (1) and (2) cannot be accepted as real grounds of appeal.  

13.3.   For grounds (3) to (5), we reject the appellant’s argument in relation to lack of legal representation.  He had the benefit of legal assistance in preparing his case before the Director and he has not suggested that there was anything new thereafter which required fresh legal assistance.  There are no grounds for revisiting the authorities which are well-established.      

13.4.   For ground (6), the Director had informed the appellant by letter dated 15 September 2016 that he should submit additional facts, if any, and that there would a further written decision of his claim for non-refoulement.  He did not do so, nor did he make any inquiries at any stage.  We do not see any unfairness in this ground. 

14.  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.

15.  Finally, in relation to ground (7), he added at the hearing before this court that his parents and his sister had died from “tension” because the police had come to their house to look for him.  Even assuming that to be true, that is not relevant to this appeal. 

Order

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