REHMAN WAJID UR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 294/2022

[2023] HKCA 353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 294 OF 2022

(ON APPEAL FROM HCAL NO 46 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (the “Judge”)  given on 15 July 2022[1] refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (the “Board” and the “Board’s Decision”)  dated 21 December 2018 dismissing the applicant’s petition/appeal against the decision of the Director of Immigration (the “Director”)  dated 28 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant was born in 1976 in Jammu and Kashmir, the Indian-administered area of Kashmir.  His parents had passed away.  As a young child, he was taken in by his foster family to live in various places in Pakistan. In 1992, the applicant left his foster parents and moved to Islamabad in Pakistan to stay with his friend Tahir and to work there.  In 2002, he came to Hong Kong and was convicted of criminal offences[2] in 2003.  He was repatriated to Pakistan in 2004. 

3.  In 2005, the applicant was accused by his foster father of having a relationship with his foster father’s daughter, which he denied.  This led to hostility and deterioration in the relationship between him and his foster father, to the extent that his foster father had verbally threatened to kill him.  The applicant also suspected that he was poisoned by his foster father in 2009 and claimed that his foster father had used his influence and network to threaten and kill his friends who had helped him, as his foster father was an influential benefactor of the main political party in Pakistan. 

4.  On the other hand, the applicant claimed that he was a target of the Pakistani government because he was a member of a separatist political group called Jammu Kashmir Liberation Front (“JKLF”)  since 2006 which supports the independence of the Kashmir state from India and Pakistan, but he had never had any direct involvement in their activities other than persuading other people to support their mission.  The applicant claimed that in 2010, the Pakistani agencies had conducted a raid in the building where he lived looking for JKLF members.  He suspected that his foster father must have tipped off the Pakistani agencies.  The applicant felt it was no longer safe to remain in Pakistan.  He tried to leave the country in March 2010 but encountered difficulties with the immigration until his friend Tahir bribed someone in the authorities to help the applicant leave the country. 

5.  The applicant subsequently arrived in Hong Kong illegally on 3 June 2010 and surrendered to the Immigration Department.  On 8 June 2010, he made a torture claim under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)  on the basis that he would be harmed or killed by his foster father.   The Director rejected the claim on 21 November 2012.

6.  On 29 May 2014, the applicant lodged a non-refoulement claim by way of a Supplementary Claim Form, claiming additionally that he will be tortured, ill-treated and/or persecuted by the Pakistani government due to his membership of the JKLF.  The details of his claim are set out in [43] to [106] of the Board’s Decision. 

The Director’s Decision

7.  The applicant’s non-refoulement claim was processed under the Unified Screening Mechanism.   By a Notice of Decision dated 28 September 2017, the Director rejected the applicant’s non-refoulement claim having regard to the BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds.   There was no assessment under the torture risk[6] ground in light of the rejection of his previous torture claim. 

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board and a hearing took place on 21 September 2018.  At the hearing, the applicant adopted the information in the hearing bundle as evidence in support of his claim, and he gave oral evidence and answered questions raised by the adjudicator.  On 21 December 2018, the Board dismissed the appeal. 

9.  The Board considered the documentary and oral evidence of the applicant and rejected them as being unreliable and incredible. The Board found that the applicant’s fear and suspicion of his foster father’s acts were unreasonable and lacked evidential basis.  The applicant had not sustained any physical injuries, let alone severe injuries from his foster father, over a lengthy period of time between 2005 and 2009[7].  The Board did not accept that his foster father would be driven by such extreme and ruthless intention to kill the applicant merely because of a suspicious relationship between the applicant and his daughter[8]. Further, the Board did not accept that the applicant was a target of the Pakistani government or a victim of the political struggle between India and Pakistan, given that he was only an ordinary member of the JKLF[9].  There was also no evidence of any official involvement in his experience with his foster father[10].  Based on the available Country of Origin Information (COI), the Board found that state protection was available to the applicant and internal relocation was a viable option[11].  Overall, the applicant failed to satisfy the threshold of the level of risks required for non-refoulement protection. 

The Judge’s decision

10.  The applicant filed a Form 86 on 7 January 2019 for leave to apply for judicial review of the Board’s Decision.  In his supporting affirmation of the same date, the applicant put forward the following grounds for his intended challenge:

(1)  There was no legal representation or language assistance provided to him for his appeal before the Board;

(2)  The Director was wrong in assessing that state protection was available to him upon his return to his home country despite evidence from him that the local police did not lodge any FIR (First Information Report)  for him after he reported to the police;

(3)  The Director had quoted various COIs which supported the applicant’s assertions with regards to state protection but stated that the situation in Pakistan had improved without giving any explanation as to how the COIs were assessed;

(4)  The Board failed to apply high standards of fairness and failed to give reasons for rejecting the credibility of the applicant’s claim despite all the evidence and documents provided by him in support of his claim such that the Board’s Decision was unfair, unreasonable and illogical;

(5)  The Director had merely adopted a formulaic and biased approach in assessing the applicant’s claim by relying on the same COI which supported his assertion of the overall corruption of Pakistan and ineffectiveness of the Pakistani police to rule against the applicant’s claim.

11.  The applicant has also requested for an oral hearing before the Judge in his supporting affirmation.  However, the applicant was absent at the scheduled hearing on 13 May 2022 and the Judge accordingly dealt with the application on paper. 

12.  After summarising the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave the following reasons at [12] to [18] of the Form CALL-1:

“ 12. 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 complaint 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.

13. The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and make representation in his appeal before the Board and to answer questions put to him by the Adjudicator without any difficulty. As such 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.

14. As for his complaints under the other grounds, I find them to be just some vague and bare assertions of the Applicant without details or particulars or elaboration as to how they apply to his case or in what way did the Director or the Board fail to consider the relevant COI properly or to apply high standards of fairness in their assessment of his credibility or how they apply a formulaic approach in their determination of his claim. As such I do not find any of these grounds reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director of the Board or in their decisions being clearly and properly identified by the Applicant who also failed to attend the hearing of his application without explanation, I do not find any reasonably arguable basis for his intended application either.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. The fact is that it has been correctly 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.

17. 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 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.

18.  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.” 

Grounds of appeal

13.  In his Notice of Appeal filed on 29 July 2022, the applicant’s grounds of appeal are largely repetitive and the main grounds can be summarised as follows:

(1)  He did not receive any letter of the oral hearing (before the Judge)  despite residing in the same address.  He has only received the Judge’s decision refusing leave to apply for judicial review[12]. 

(2)  There was no legal assistance provided to him at all material times.  He did not elaborate on the grounds in his affirmation because of the lack of legal advice and representation[13]. 

(3)  There was no language assistance provided to him at all material times.  The Judge failed to acknowledge his language difficulties and the lack of interpretation services provided to him after the Director’s Decision. Even though he was provided with an interpreter during the hearing before the Board, he was not able to identify the errors in the Director’s Decision because of his education level[14].

(4)  There were no other avenues for non-refoulement claimants to appeal against the decision (of the Board)  based on credibility and it was procedurally unfair[15].

14.  In the applicant’s written submissions lodged on 6 February 2023, he reiterated that the lack of legal and language assistance has deprived him of his right to lodge a proper appeal.  In addition, he raised the following arguments:

(1)  He wished to clarify that he was not an adopted son but was actually kidnapped and he managed to escape from his kidnappers.  He was almost killed by his kidnappers and state protection was not available to a refugee like himself so he had to escape from his country.  The Director and the Board did not consider these evidence[16].

(2)  He was dissatisfied with his interpreter at the Screening Interview.  The immigration officer had arranged for another interpreter for him but he was not allowed to speak on matters about Kashmir[17]. 

15.  At the hearing of the appeal, the applicant indicated that he has nothing further to add to what was already stated in his Notice of Appeal and written submissions. 

Legal Principles

16.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was 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 and/or the process by which the decision was made.

(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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review. 

Discussion

17.  In relation to the applicant’s complaint that he was not informed of the oral hearing for his leave application for judicial review, it appears from the Form 86 and supporting affirmation that the correspondence address provided by the applicant was invalid or incomplete[18], as evidenced by a returned mail received by the Court on 17 September 2021.  The Court has therefore obtained the applicant’s last reported address from the Immigration Department[19] and re-issued a letter on 27 September 2021 to the applicant to ask if he would like to have an oral hearing for his application.  However, the Court did not receive any response from the applicant. 

18.  Nevertheless, the Court had sent a Notice of Hearing dated 29 April 2022 to the applicant by ordinary post to: (1)  the initial (invalid)  address provided by the applicant in the Form 86; (2)  the applicant’s last reported address provided by the Immigration Department; and (3)  another address in Sham Shui Po which is the same address provided by the applicant in his Notice of Appeal[20].

19.  The applicant was absent at the hearing on 13 May 2022, though.  The applicant subsequently acknowledged that he had received the Form CALL-1 sent to address (3)  above, and further confirmed in his Notice of Appeal that he is still living in the same address[21].  There is thus no reason why he had received the Form CALL-1 but not the Notice of Hearing.  In these circumstances, we do not accept the applicant’s complaint that he was not informed of the oral hearing for his leave application.  In any event, it is the duty of the applicant to ensure that the correct address is provided to the Court and to inform the Court promptly if there are any changes. 

20.  We now turn to the applicant’s complaint as to the lack of legal assistance and representation which allegedly deprived him of his right of a proper appeal.  In our view, there are no merit in this ground, for the following reasons. 

21.  First, the Judge found that the applicant had the benefit of legal representation from the Duty Lawyer Service in presenting his case to the Director and was able to testify and make representation in his appeal before the Board and to answer questions put to him by the adjudicator without any difficulty.  As such, the Judge did not find anything amiss from the lack of legal representation in his appeal process. 

22.  Second, the Court has repeatedly emphasized that a non-refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  As stated by this Court in Re Zunariyah [2018] HKCA 14 at [18] and [19], Duty Lawyer Service is available for applicants in the appeal proceedings but it is subject to a merit test.  In the present case, the applicant did not explain why he did not have the service of the duty lawyer when he appealed to the Board.  The applicant did not challenge any application of the merit test by the Duty Lawyer Service.  In the absence of any assertion by the applicant that the merit test had not been properly applied, we do not accept that the complaint of the lack of legal representation before the Board has rendered the process procedurally unfair. 

23.  Third, we do not accept the applicant’s contention that the lack of legal assistance has inhibited his ability to proceed with the leave application and the present appeal.  In particular, we note from the applicant’s 16-page affirmation that he has set out his grounds of challenge against the decisions of the Board and the Director and provided the reasons for the arguments and has made reference to legal principles and case authorities.  In his Notice of Appeal and written submissions, he was equally capable in setting out his grounds of appeal and alleged points of errors in the Judge’s decision. 

24.  In relation to the lack of language assistance, the applicant did not explain how the alleged lack of translation of the hearing bundle or any particular aspect in the hearing before the Board has hampered the presentation of his appeal.  In fact, the applicant acknowledged that he was assisted by an interpreter at the Board’s hearing[22]. As found by the Judge, the applicant had no difficulty testifying and making representation in his appeal before the Board.  His observations are justified and we do not see any merits in the applicant’s complaint that the Judge has failed to acknowledge his language handicap.  In any event, it is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20]. 

25.  Furthermore, the applicant complained that there are no avenues for non-refoulment claimants to appeal against the decision of the Board based on credibility.  In his written submissions, he has also raised a completely new basis of claim and alleged that the Director and the Board have failed to consider those evidence.  He also raised for the first time that he was not allowed to speak on matters about Kashmir at the screening interviews with the immigration officer.  We do not accept these arguments to be valid grounds of appeal, for the following reasons. 

26.  First, as mentioned above, the findings of fact and the assessment of evidence rest within the province of the Board and the Director as the primary decision-makers.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  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. 

27.  Second, the applicant was legally represented at the departmental stage which included the screening interviews with the immigration officer.  In bringing his appeal before the Board, the merits of his non-refoulement claim are considered afresh and the applicant had expressly adopted all the information contained in the hearing bundle as evidence in support of his claim at the Board’s hearing, which included inter alia his non-refoulement claim forms and records of interviews.  The applicant did not challenge this finding of the Board in his leave application.  Having taken into account all the documentary and oral evidence of the applicant, the Board found that his evidence was unreliable and rejected his factual case of threats from his adoptive father and from the Pakistani government.  Such findings are primarily within the province of the Board and we agree with the Judge that they are not open to challenge since no errors of law or procedural unfairness had been shown.   

28.  For the reasons given above, none of the arguments raised in the Notice of Appeal and the applicant’s submissions can amount to arguable ground for the intended judicial review.  In the circumstances, there is no proper basis for this Court to interfere with the Judge’s refusal of the application for leave to apply for judicial review.   

29.  Having considered the materials before us, we agree with the Judge that the intended judicial review has no reasonable prospect of success and that the application for leave to apply for judicial review should be refused. 

Order

30.  For the above reasons, this appeal is dismissed.