RE MOHAMMAD JAVED

CACV579/2019

[2020] HKCA 430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 579 OF 2019

(ON APPEAL FROM HCAL 1231 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr MOHAMMAD Javed, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 11 December 2019 refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 5 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 28 August 2015 and a notice of further decision dated 16 November 2016 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively and “Director’s Decisions” collectively).

Bases and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Pakistan now aged about 42, is a fear of being harmed or even killed by the family of his paternal uncle Shahbir Abbas (“Abbas”) due to a feud arising from the applicant’s marriage to Rafaqat Bibi (“Rafaqat”), daughter of Mohammad Ilyas (“Ilyas”), another paternal uncle of the applicant.

3.  The events giving rise to such fear have been set out in detail in [17] to [50] of the 1^st Director’s Decision and [3] to [30] of the Board’s Decision and in gist in [1] to [9] of the Form CALL-1 dated 23 December 2019, [2019] HKCFI 2568 (“Form CALL-1”).  Briefly:

(1)  Abbas’ family was well off with business interests in Pakistan and Dubai. They also had influence in the applicant’s home village, Chahal in the Province of Punjab. Not only did they have connections with the police, they had ties with the Pakistan Rangers too as one of Abbas’ sons, Azhar, was himself a ranger stationed near the Indo-Pakistan border.

(2)  The applicant and Rafaqat were engaged by the arrangement of their respective families when they were young.

(3)  In the mid 1990s, Azhar started courting Rafaqat as he also wanted to marry her.

(4)  Rafaqat favoured, and chose to remain engaged to, the applicant.

(5)  Violent clashes between the applicant’s family and the Abbas family, involving the use of a variety of weapons including firearms, started in 1995-1996 and continued up to 2000. Both the applicant and his brother, Waris, had sustained injuries in these incidents, which required hospitalisation.

(6)  The local police refused to take any action without bribes which the applicant’s family could not afford to pay.

(7)  In 2000, the applicant and Waris decided to save their lives by coming to Hong Kong, where they overstayed and were eventually arrested and imprisoned. They were repatriated back to Pakistan in 2001.

(8)  After his return to Pakistan, the applicant married Rafaqat in August 2001. The feud between the applicant’s family and the Abbas family continued. 

(9)  On 18 October 2001, the applicant, two of his brothers, Waris and Jamsheed, and Waris’s friend, Abdullah, were ambushed and attacked by four of Abbas’ sons armed with guns. Waris and Abdullah (who tried to intervene) were forcibly abducted.  Waris was later found shot dead while Abdullah had been shot in both knees and legs and became paralysed.

(10)    It was only upon pressure exerted by Abdullah’s mother who was formerly a councillor of the region that the police finally took action and arrested Abbas’ sons. Two of them, Fazal and Mudasay, were subsequently convicted of the murder of Waris and wounding Abdullah in around 2002 and sentenced to 25 years of imprisonment.

(11)    The animosity of the Abbas family towards the applicant and his family deepened.

(12)    To save their lives, the applicant and some of his brothers fled to Mana Kot Village in Sialkot District where they kept a low profile to avoid any attention from the Abbas family.

(13)    A few uneventful years passed by. Then, one day in 2005, Azhar and 5 or 6 unknown persons who, without any warning, fired their guns at the applicant and his friend. The applicant managed to escape unharmed but his friend was shot twice in the thigh and had to be taken to the hospital.

(14)    On another occasion in 2006, the applicant and his brother Jamsheed were arrested over some false charges of robbery made up against them by Abbas’ son Shahid. They maintained their innocence and refused to confess. Although they were released on the following day with an apology from the police that they had mistaken the applicant and Jamsheed for someone else, they had already been physically tortured in the course of their interrogations at the police station.

(15)    In the same year, some of Abbas’ sons and 3 to 4 other persons abducted and beat up the applicant’s brother-in-law Chaand.  It was not until his family called the police for help that Chaand was eventually released.

(16)    Later in the same year, the applicant’s family reluctantly reached settlement with the Abbas family on the terms that the Abbas family would transfer certain properties to the applicant’s family as compensation for Waris’ death, whereupon the 2 Abbas sons serving sentences for Waris’ murder would be released from prison.

(17)    The ceasefire did not last. Conflicts soon resumed after the release of the Abbas sons. 

(18)    The Abbas family first forcibly took back the land and house transferred to Waris’ children.

(19)    Then Ilyas had a clash with Azhar during a numberdar (who is responsible for land matters in the area) election which led to the death of 2 supporters of the Abbas family. The Abbas’ family however blamed the applicant’s family for their losses because the applicant’s family always supported Ilyas in the numberdar election.   

(20)    Later, the applicant fled to Faisalabad, and then to Karachi, and then back to Faisalabad, every time on information that his whereabouts had been leaked to the Abbas family. While he was in hiding, Abbas’ sons looted his house in Chalal. His family had no choice but to stay in the animal shed.

(21)    Believing that it was no longer safe for him to remain in Pakistan, on 7 August 2007, the applicant left Pakistan for China.

(22)    The applicant had kept contact with his family after his departure from Pakistan. He learnt that in 2013, his brother Asif narrowly escaped death in an attack by Abbas’ sons but their aunt Naziran Bibi was shot dead in the incident.

Entry into Hong Kong and lodgment of NRF Claim

4.  The applicant entered Hong Kong from China illegally on 14 August 2007.  He was arrested on 9 January 2008. On 14 January 2008, he was convicted of remaining in Hong Kong without the authority of the Director after having unlawfully landed in Hong Kong and was sentenced to imprisonment for 10 months.

5.  On 26 February 2008, the applicant lodged a torture claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, which claim was taken to be, and processed as, a non-refoulement claim upon the commencement of the unified screening mechanism on 3 March 2014. In June 2014, the applicant accepted legal assistance and representation from the Duty Lawyer Service (“DLS”).  The applicant’s completed non-refoulement claim form (“NCF”) was submitted to the Director through the DLS by letter dated 18 August 2014.

6.  In processing the NRF Claim, in place of a screening interview (which the Director had twice attempted to fix with the applicant without success), on 27 March 2015, through the DLS the applicant provided the Director with written answers (“Answers”) to a list of questions relating to the NRF Claim served by the Director on the applicant by letter dated 16 March 2015 to the DLS. The Director processed the NRF Claim based on the NCF, the Answers and the written legal submissions by the DLS on behalf of the applicant[1].

Director’s Decisions

7.  The 1^st Director’s Decision found the NCF Claim unsubstantiated under torture risk[2], persecution risk[3] and “BOR 3” risk[4].

8.  Following the 1^st Director’s Decision, by a letter dated 30 September 2016, the applicant was invited to submit additional relevant facts on or before 14 October 2016 so that the Director could take them into account in considering the NRF Claim on any other applicable ground.  According to paragraphs 2, 5 and 6 of the 2^nd Director’s Decision, the applicant responded to such invitation by written submission dated 28 October 2016 through the DLS, which basically reiterated information previously provided to the Director. The only new information was that the police arrested Abbas’ sons Azhas and Fazal for the murder of the applicant’s aunt in 2013; that no trial had taken place; that the release of Azhas and Fazal was secured after some 6 months through bribery; that another Abbas’ son Nazar involved in the murder flew to Dubai for a year and returned to Pakistan without ever having been arrested.

9.  By the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[5].

Appeal to Board and Board’s Decisions

10.  The applicant appealed against the 1^st Director’s Decision to the Board on 11 September 2016.

11.  After a rehearing over 6 days, at which the applicant was represented by the DLS and testified before, and answered questions by, the Board through a Pakistani interpreter, on 5 June 2018, the Board dismissed the appeal on all applicable grounds for non-refoulement protection[6]. In so doing, the Board found the applicant’s information and evidence to be “totally unreliable” as the information in the NCF and his evidence were “inconsistent with each other” “in material aspects”. Furthermore, the Board observed that from 2001 to 2006 when the applicant lived in Mana Kot Village, he was undisturbed by his cousins. Thus, the Board considered it highly unlikely that the feared ill-treatment would materialise if the applicant relocated to places other than his home village.The Board also noted that the feud between the applicant’s family and the Abbas family is a private dispute without any involvement of the Pakistani government.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1231/2018 on 29 June 2018 (“Form 86”), supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision[7] on grounds summarised by the Judge in [15] of the Form CALL-1 as follows:

(1)  that the Director failed to take into account or to give sufficient weight to the argument that the inaction of government officials can effectively hold the state liable for failing to provide protection to its citizens against risk of torture;

(2)  that the Director failed to consider or give sufficient weight to relevant COI which supported the Applicant’s case that the police or authorities in Pakistan would not assist him;

(3)  that the Director quoted different sources to conclude that the Pakistani government had taken practical steps to monitor the conduct of the police and that there were alternative avenues to seek justice in Pakistan were mere speculations;

(4)  that the Director failed to recognize that corruptions and incompetency in the Pakistani police were still extremely serious and that the situation in Pakistan were still very dangerous for its citizens;

(5)  that the adjudicator failed to make sufficient enquiry before finalizing the Board’s decision; and

(6)  that the adjudicator concluded that the Applicant did not face a genuine and substantial risk of being subjected to BOR 3 ill-treatment without advising the Applicant to obtain medical reports and/or evidence from Pakistan authorities when deciding seriousness of the injuries suffered by him.

13.  After hearing the application in open court on 30 August 2019, at which the applicant was present and was assisted by a Pakistani interpreter, the Judge refused leave. His reasons can be found in [16] to [20] of the Form CALL-1:

“16. These are however 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 Director or the adjudicator had erred in their decisions, or in what way did the Director fail to take into account relevant COI, or how did the adjudicator fail to make sufficient enquiry, or what relevancy was medical report to his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any legal error or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

17. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the applicant,as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

18. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision 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.

19. 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.

20.  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 and grounds of appeal

14.  By the notice of appeal filed herein on 16 December 2019, the applicant appealed against the refusal of leave for judicial review on the following ground (sic):

“I am not satisfied with the decision because its away form facts and reality which are related with my case. There is no any transparency in these decision. Please accept application and allow me to process further my case.”

15.  In his skeleton submission dated 7 May 2020, the applicant asserted as follows (sic):

“… I have problem in my own country.

I cant go back to my country at this moment because my problem still the same for this I need your help I hope I will get sometime to sort out my problem.

My enemies still looking about my whereabouts they always come to locate me and keep asking and warning regarding me that when ever they see me I will be killed by them.

I can’t survive there in front of them .I don’t have enough sources to protect myself there. Even police also can’t protect me from them. My enemies have lots of man power and strong political support which makes them so powerful.

Death and torture in police custody of innocent persons are so comman in my country and people who responsible for this are always enjoy freedom due to their power.

Even if sometime police arrest the culprits they can bribe to police and come out due to corrupt system.so how can comman can get justice in corrupt environment of our system.

So many things which need to see about my condition that how can I survive there if I return to country.I may be tortured or killed by them.Life of people like me is so tough.

No one have dare to stand and talk anything to them because almost all scared to them no body stand with me there and alone I’m nothing in front of them.

Now I left hope only from you so that I can save my life.I hope you will give me your kind favour to protect my life.iam trying to sort out my problem with help of some persons but for this I need some more time.

I hope you will give me sometime to stay here until my problem will be solved.iam looking towards your kind attention over my application.

I hope i will get your kind favour .I will be greatfull to you for your help and attention.”

16.  The applicant appeared in person at the hearing of the appeal on 27 May 2020. He was provided with the assistance of a Pakistani interpreter. He had nothing to add to his notice of appeal or skeleton submission.

Court of First Instance’s role in judicial review in non-refoulement claim

17.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[8]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

19.  As explained in the preceding paragraph, in hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is whether, in denying leave for judicial review, the first instance judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. 

20.  Neither the bare expression of dissatisfaction with the Judge’s decision (without identifying how it was wrong) nor the hope for obtaining a better outcome or more time in Hong Kong from the Court of Appeal, as expressed in the notice of appeal and skeleton submission, is or could be a ground of appeal, properly so called. 

21.  Further, as summarised in [11] above, the NRF Claim failed on the facts and evidence before the Board. In particular, the Board assessed the risk of harm facing the applicant upon his return to Pakistan to be low, especially if he stays away from his home village. Such findings of fact contradict the applicant’s repeated allegation in his skeleton submission that his life will be endangered if he goes back to Pakistan. The question whether the applicant would be at risk if refouled is a question of fact within the province of the Board (after the Director): see [17] above. The Board heard the applicant.  It provided detailed reasons in [31] to [88] of its decision, explaining why it found the information provided and evidence given by the applicant on the events upon which the NRF Claim was premised to be “totally unreliable”. It can be seen from [12] above that the applicant has not, by the proposed grounds for judicial review raised before the Judge, articulated any errors of law, procedural unfairness or irrationality on the part of the Board in coming to such adverse findings against him. 

22.  The applicant has simply failed to state in his notice of appeal or skeleton submission in what ways (if any) the Judge had erred in law, failed to consider any relevant matter or was otherwise plainly wrong.

Disposition

23.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

[1] By letter dated 26 September 2014, the DLS informed the Director on behalf of the applicant that the NRF Claim should be assessed without reliance on previous screening records and/or questionnaire.

[2] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[3] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance.

[6] Notwithstanding that the applicant had not lodged any appeal against the 2^nd Director’s Decision.

[7] The Form 86 also sought to have the 1^st Director’s Decision judicially reviewed.  However, applying Moshsin Ali [2018] HKCA 549, the Director’s Decisions, having been superseded by the Board’s Decision which represented the final decision on the NRF Claim at the end of its processing, were not susceptible to judicial review once an appeal to the Board had been pursued by the applicant.

[8] [1954] 1 WLR 1489.