AFSAR KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 71/2019

[2019] HKCA 751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 71 OF 2019

(ON APPEAL FROM HCAL 612 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 Afsar Khan (“the appellant”) from an order of DHCJ Josiah Lam (“the judge”) given on 1 February 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 5 September 2017 (“the 2^nd Decision”) rejecting the appellant’s claim under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance Cap. 383 made on the basis that he was at risk of loss of life (“BOR 2 risk”).

1.3.   The TCAB had previously on 5 December 2016 (“the 1^st Decision”) rejected the appellant’s claim in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”.  However as will be seen later, the appellant had, after the 1^st Decision, adduced further materials in respect of the BOR 2 risk.

Background

2.  The appellant is a national of Pakistan born in 1965.  He is a Sunni Muslim.  He entered Hong Kong illegally on 18 February 2008 from Guangzhou.  He raised his claim for non-refoulement by way of written representation dated 5 May 2009, and subsequently filed a non-refoulement claim form dated 11 September 2014.    

The appellant’s allegations

3.  Put briefly, the appellant’s claim was based on his fear that if he was returned to Pakistan, he would be harmed or killed by Afzal, his relative who is a Shia Muslim and a supporter of the Pakistan People’s Party (PPP), due to a conflict over whether Sunni or Shia funeral rites should have been used after the death of another relative Mubarak.

-   In around June 1995, the appellant arranged the funeral for Mubarak, who was a Sunni Muslim.  Afzal had a dispute with him as Afzal considered that the funeral should follow Shia rites. Subsequently, the appellant had a fist fight with Afzal.

-   The day following Mubarak’s funeral, some policemen came to the appellant’s house.  Apparently Afzal had lodged a report against the appellant’s family and accused him of having pointed a pistol at him.  The appellant said these were false accusations.

-   The appellant hid in various places but instructed a lawyer to defend himself. Subsequently, he became aware that he had been acquitted by the court in February 1997. 

-   While the appellant’s case was pending in the court, Afzal came to his house to search for him.  The appellant decided to leave Pakistan which he did using his passport on 11 February 2008 and arrived in Hong Kong on 18 February 2008 from Guangzhou.

-   The appellant learnt from his family that Afzal still came to his house to search for him.

4.  Pausing here, the above sets out the state of the appellant’s claim at the time of the 1^st Decision, but as noted earlier, his appeal is against the 2^nd Decision.

5.  The 2nd Decision came about when, after the 1^st Decision, the Director on his own initiative decided to consider the BOR 2 risk.  He invited the appellant to submit further materials on the BOR 2 risk.  

The Director’s Decision on BOR 2

6.1.   The appellant did provide further materials on 6 January 2017, in which he alleged that his nephew had been killed by Afzal and that his father and brother had been assaulted when he was still in Pakistan, and that his house had been burnt down after he arrived in Hong Kong (even though that was many years after the incident with Afzal).  He also reiterated his allegation that Afzal had presented the false case against him. 

6.2.   The Director interviewed him on 21 February 2017.  He noted that the appellant had not mentioned the attacks on his family in his previous interview in respect of “BOR 3 risk”, “persecution risk”, and “torture risk” and that the appellant said he had forgotten when his house was burnt down.  The Director considered the appellant’s evidence in these aspects were “vague and lacking in detail” (para. 7(ii)). He rejected the appellant’s claim in respect of “BOR 2 risk” for reasons set out in a decision dated 4 May 2017.

The TCAB’s 2^nd Decision

7.1.   The appellant then appealed to the TCAB.   

7.2.   The TCAB took the view that the appellant’s case “under BOR 2 Risk, other than a few alleged hearsay with woefully vague and unreliable details, is the same as found in the Hearing Bundle at the oral hearing with the TCAB [the 1^st Decision hearing]” (para. 7).  The TCAB then said “his case is abundantly clear as was before the TCAB then as it is now.  I can see neither a need nor the justification to organise yet another oral hearing merely to re-canvass the case” (para. 9) because it did not find “the Director to have been at all unfair or inadequate” (para. 7).  Accordingly, the appellant was not given an oral hearing and his appeal was dismissed.

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 2^nd decision.  The appellant set out his grounds in his affirmation in support.  He said he had no legal assistance to present the further materials for his BOR 2 claim, and complained about the TCAB’s refusal to give him an oral hearing.

The Judge’s Decision

9.  The appellant appeared at the hearing before the judge.  As mentioned earlier, the judge refused leave for reasons set out in the Judge’s Decision, in particular

“29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

30. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising 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 (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.’

31. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 11 February 2015. He complained there was no legal representation thereafter.

32. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

33. The Applicant complained the Adjudicator failed to consider all the evidence he had submitted including the information in his letter of 6 January 2017. That was not true. The Adjudicator had considered the Applicant's case meticulously, including his submission via the letter of 6 January 2017. The Adjudicator found there was nothing new in that submission other than hearsay and vague/unreliable details. He was entitled not to attach weight to such information.

34. The Applicant complained the Adjudicator failed to conduct any oral hearing. That was not true. The Adjudicator tried to interview the Applicant on 1 December 2015. The Applicant decided not to testify. The Adjudicator was aware of the Applicant's later submission in his letter of 6 January 2017. He found there was no new information in that submission other than hearsay and vague/unreliable details. The Adjudicator was entitled not to hold further hearing in the circumstance. The Applicant failed to show he had worthwhile or effective representations to make. In court, the Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his claim.

35. The Applicant accused the Adjudicator of adopting a biased and formula approach in assessing his claim. That was a vague accusation and an unfair one to make. The Adjudicator had looked at the Applicant's case seriously and in depth.

36. I have reviewed the Adjudicator’s further decision and also his earlier decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

37.   The Applicant’s complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 15 February 2019, the appellant appealed the judge’s order to this court.  The appellant stated the following grounds in the Notice of Appeal:

“(1) Procedural impropriety in failing to consider the concept of extended state acquiescence in the consideration of my claim.

(2) Procedural impropriety in failing to conduct sufficient independent inquiry into the relevant COI as to the effectiveness of the Pakistan authorities to protect its citizens in the consideration of my claim.

(3) Procedural impropriety in failing to consider the facts that persons are being killed in the name of religion in my home country.

(4) Misdirection in law failing to consider the psychological effects of the threats/attacks made against me or the severity of the threats and attacks or to take into account of the evidence of the attacks against me or the numbers of attacks on me or the cumulative effect of inactions by the police in the protection of citizens in Pakistan.

(5) Irrationality and illegality in failing to give sufficient reasons as to why I was not found to be at risk under any of the grounds I faced.

(6) There are broad assertions presented by me to take into account of COI in assessing the dangerous situations in Pakistan.

(7)   The very grave situation my family is facing in my home country.”

Skeleton Submissions

11.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellant making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

12.  First, it would be noted that the appellant was not given legal assistance for the presentation of his further materials in respect of the BOR 2 risk which is a fresh claim, not an appeal from his previous claims under the other three risks.  The judge’s reliance on authorities to the effect that a claimant does not have the right to legal representation at “later stages of the screening process” (i.e. appeal to the TCAB) was therefore not appropriate.

13.  More importantly, with respect the judge was in error in dismissing the appellant’s complaint of not being given an oral hearing for the BOR 2 claim, on the ground that he had been given an oral hearing prior to the 1^st Decision.  This raises a question of procedural fairness.  The judge failed to note that there were further materials which had not been presented at the oral hearing prior to the 1^st Decision, in particular the appellant’s allegation that his house had been burnt down at an unparticularised time save that it was after he had come to Hong Kong (in other words, possibly after the 1^st Decision). 

14.  Although the Director had found the further materials to be “vague”, the appeal to the TCAB is by way of re-hearing when under the “joint endeavour” approach, the TCAB should have engaged the appellant in clarifying (if the appellant could) the vague allegations.  If the appellant failed to clarify them at an oral hearing (had he been given one), the TCAB would be perfectly justified in dismissing his claim, but he should have been given the opportunity to do so, especially when the appellant had not had the benefit of legal assistance in preparing the further materials.

15.  In ST v Betty Kwan CACV115/2013, the Chief Judge (as he then was) had set out in detail the general principles pertaining to the holding of oral hearings as a question of procedural fairness, particularly in the context of screening torture claimants.  Although there is no absolute right to an oral hearing, a number of matters must first be considered before a claimant is denied one (para. 26).  It does not appear that the TCAB had considered them and this omission was not picked up by the judge. 

16.  At para. 38 of ST, the Chief Judge considered what was at stake and held that it was a weighty consideration favouring the holding of an oral hearing. At para. 39, the Chief Judge noted the need for the adjudicator to adopt an active role in screening a CAT claim.  It may be appropriate for him to draw attention to matters that needed clarification or elaboration so that they can be addressed by the claimant (para. 39) and this is so when the material placed before the TCAB “calls for some further probing, questioning or inquiry as a matter of fairness” (para. 43).  In the present case, rather than doing so, the TCAB seized on the Director’s view that the materials were vague and took that to be a bar to an oral hearing, rather than showing a need for one.  The TCAB’s failure to adopt and apply the principles set out in ST was not picked up by the judge who took the view that the TCAB was entitled not to hold a further hearing (para. 34).

17.  We appreciate that for the court to grant relief in judicial review based on procedural unfairness, the applicant should also demonstrate that he has suffered prejudice by reason of that.  In this respect, it is not apparent from paragraph 34 of the Judge’s Decision whether he had specifically engaged with the applicant at the hearing on the issue of any prejudice which the appellant may have suffered due to the absence of an oral hearing before the TCAB (for example, what the applicant could have further told the TCAB had the TCAB made further inquiries with him in relation to the new materials, in particular the burning of his house).  In other words, it is not clear from the Judgment that before refusing leave, the judge had brought his mind to bear on the issue of prejudice and that it was only after having done so that he concluded that it was not reasonably arguable that the applicant could show any prejudice by reason of the procedural unfairness.

Order

18.  For the reasons set out above, this appeal is allowed, the judge’s order is set aside and the appellant is given leave to apply for judicial review.