IDREES SOHAIL AND OTHERS v. TORTURE CLAIMS APPEAL BOARD /NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 539/2019

[2020] HKCA 368

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 539 OF 2019

(ON APPEAL FROM HCAL 555/2017)

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J U D G M E N T

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Hon Marlene Ng J (giving the Judgment of the Court):

I. INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 18 November 2019 in HCAL 555/2017 refusing leave to the 1^st, 2^nd and 3^rd applicants to apply for judicial review.

2.  The 1^st and 2^nd applicants are respectively husband and wife, and the 3^rd applicant is their daughter.  They are nationals of Pakistan who arrived in Hong Kong on 30 June 2016 with permission to remain as visitors up to 7 July 2016.  They did not depart, and on 8 July 2016 they surrendered to the Immigration Department.  On 9 August 2016, the applicants raised their non-refoulement claim by way of written representations on the basis that if they were to return to Pakistan they would be harmed or killed by some gangsters who were members of the political party Muttahida Qaumi Movement (“the MQM”) in relation to disputes over certain land in Karachi, Pakistan between the employer of the 1^st applicant’s brother Indrees Faisal (“Faisal”) and the MQM.  The 1^st applicant and his family also claimed to have been threatened to reveal the whereabouts of Faisal to members of the MQM because of such land disputes.  The background facts were sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 2374.  We shall not repeat the same here.

3.  In fact, about three years before the applicants’ arrival in Hong Kong (ie on 20 June 2013), Faisal and his family came to Hong Kong.  They overstayed since 28 June 2013, and then surrendered to the Immigration Department.  On 18 March 2015, they lodged non-refoulement protection claims by written representations on the basis that if they were to return to Pakistan (a) they would be harmed or killed by Amanullah who was president of the Pakistan Muslim Quaid-e-Azam (“the PMLQ”) with the assistance of the MQM and the land mafia as Amanullah blamed Faisal for losing a civil property case to Faisal’s employer that caused him financial and reputational loss, and (b) they would be harmed by Shia extremists because they were Sunni Muslims.[1] A further child was born to Faisal and his wife in Hong Kong, and a non-refoulement claim was also lodged for this child.  The background facts were sufficiently set out by Deputy High Court Judge Woodcock in the CALL-1 Form at [2018] HKCFI 1163.  We shall not repeat the same here.

4.  The Director of Immigration (“the Director”) decided against the claims by Faisal and his family on 4 December 2015 and 13 February 2017.[2]  The former decision covered the BOR 3 risk,[3] the persecution risk[4] and the torture risk;[5] and the latter decision covered the BOR 2 risk.[6]  On 14 December 2015, Faisal and his family lodged an appeal / petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions.[7]

5.  By a Notice of Decision dated 28 December 2016, the Director decided against the applicants’ claim.  The decision covered the BOR 2 risk, the BOR 3 risk, the torture risk, and the persecution risk.  On 6 January 2017, the applicants lodged an appeal / petition to the Board against the Director’s decision.

6.  The Board held an oral hearing on 30 March 2017 in respect of the appeal / petition by Faisal and his family.  The hearing was adjourned to allow the 1^st applicant to testify for Faisal and his family.  The Board then found out the applicants had also lodged an appeal / petition against the Director’s decision, and decided to have a joint oral hearing for the appeal / petition by Faisal and his family and the appeal / petition by the applicants on the basis that the non-refoulement claims of both families were closely related.  After a joint oral hearing on 25 May 2017, the Board confirmed the Director’s decisions and dismissed the appeal / petition by Faisal and his family and the appeal / petition by the applicants on 28 July 2017.

7.  The Board found Faisal and the 1^st applicant to be wholly unreliable, and their assertions were riddled with inconsistencies, implausibilities and improbabilities with glaring contradictions between their statements made to the Immigration Department which they adopted at the hearing on 25 May 2017.[8]  The Board considered there were obvious contradictions with (a) Faisal asserting that he was physically attacked in 2009 for which he produced a medical report, that there were other incidents and court attendances in 2010, that he fled to Faisalabad, Pakistan in 2011 but returned to Karachi, Pakistan after a few months, and that there were ongoing threats after he returned to Karachi such that the father and the 1^st applicant refused to allow him to attend court, and (b) the 1^st applicant asserting that there was no untoward incident before 2013, that Faisal was attacked in 2013 but did not attend hospital, that he accompanied Faisal to court a few days later, that even though Faisal’s employer won the court case there was further harassment so Faisal went into hiding and eventually he and his family left Pakistan in June 2013.[9]  The Board rejected the possibility of incorrect recollection by the 1^st applicant, and even though both Faisal and the 1^st applicant gave 2013 as the year of the court case involving Faisal’s employer and gave almost identical descriptions of injuries suffered by Faisal, the Board found they gave different and irreconcilable accounts of attacks in 2009 and 2013.[10]  So the Board concluded that Faisal’s and the 1^st applicant’s evidence as to what happened in Pakistan was wholly unreliable.[11]

8.  The Board also did not accept that Faisal and his family and/or the applicants had any genuine fear over their safety upon return to Pakistan, and in any event reasonable internal relocation alternatives would be available such that they would be able to avoid any risk of harm from their enemies.[12] The Board considered that Faisal and his family could have moved back to Faisalabad as Faisal was only an employee who should not have been the target of his employer’s enemies, that Faisal and his wife were well-qualified and well-positioned to support themselves in Faisalabad where their enemies had no influence, and that the ruling party in Pakistan at the time was the PMLN and not the PMLQ.[13]  The Board considered Faisal and his family could also relocate to other districts in Pakistan, eg Lahore.[14]  The Board also noted that the 1^st applicant was an experienced air-conditioning technician, and that both his family and Faisal’s family had substantial connections with the Faisalabad area.[15]  For the aforesaid reasons, the non-refoulement claim of Faisal and his family and that of the applicants were rejected on all applicable grounds.[16]

II.  THE JUDGE’s DECISION

9.  On 24 August 2017, the applicants filed their Form 86 to apply for leave for judicial review in respect of the decisions of the Director and the Board.  The Form 86 filed by the applicants did not contain any ground for judicial review.

10.  As held in Re Moshsin Ali,[17] the Board’s decision has been overtaken the Director’s decision, so the court would only focus on the Board’s decision in the application for judicial review.

11.  In the supporting affirmation of the 1^st applicant filed on 24 August 2017, he put forward on behalf of the applicants the following grounds for judicial review in respect of the Board’s decision:

(1)  The Board failed to make sufficient enquiry before finalising the determination of the applicants’ claim.

(2)  The Board failed to take into consideration the seriousness of the threats made to the applicants.

(3)  The Board failed to obtain medical evidence before deciding whether the actions of violence were severe enough to be concluded as “torture” in the applicants’ case.

12.  The Judge considered the application on paper. After reviewing the materials, the Judge by the CALL-1 Form of 18 November 2019 refused leave.  The Judge, after summarising the facts and background of the case and giving due consideration to the decisions of the Director and the Board, gave the following reasons in refusing leave at [14]-[18] of the CALL-1 Form:

“14.  These are however just very broad and vague assertions of the Applicants containing several pages of 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 was state acquiescence relevant to their case, or how did the Director or the adjudicator fail to take into account relevant COI or improperly rely on COI in assessing corruptions of the police in Pakistan or the effectiveness of state protection for its citizens, or why was it necessary or relevant to consider any medical evidence in assessing whether the Applicants had been subjected to torture in Pakistan. None of these assertions were elaborated or presented with any particulars or specifics by the Applicants, and in the absence of which I do find any of them reasonably arguable for their intended challenge.

15.  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.

16.  In the present case, the Board rejected the Applicants’ claim essentially based on its adverse finding on A1’s credibility for the detailed and thorough analysis and reasoning set out in paragraphs 109 – 130 of its decision with the benefit of hearing him in oral evidence and answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicants, and upon rigorous examination and anxious scrutiny of the decision I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Pakistan, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18.  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 Applicants’ claim.”

III.  THE APPEAL

13.  In the Notice of Appeal filed on 25 November 2019, the applicants stated only one ground of appeal, namely, they would seek to “reject and review the decision made by the Immigration Department on 18/11/2019.  They disregard our dangerous situation [in Pakistan]”.  The decision dated 18 November 2019 was by the Judge and not by the Director.

14.  In his written submissions, the 1^st applicant reiterated the fear and danger he and his family would face upon refoulement, and submitted as follows:

(1)  The applicants were threatened and beaten by Faisal’s enemies (who were politically powerful and influential in Pakistan) for bearing witness to their pursuit of and attack on Faisal and his family, and as a result the 1^st applicant suffered physical injuries and the 2^nd applicant was shamed, suffered miscarriage and could no longer bear another child.  But the Board completely neglected all the details and casually dismissed the applicants’ case.

(2)  The hearing before the Board in respect of the appeal / petition by Faisal and his family was for the 1^st applicant to testify as their witness.  The applicants should have been assessed on their individual case separate from the case of Faisal and his family, but there was no separate interview / hearing for the applicants before the Board.  The combined decision of the Board for the appeals / petitions of both families mainly focused on the case of Faisal and his family rather than on the case of the applicants, and there was no fair and proper assessment of the applicants’ case by the Board.

(3)  International reports about human rights in Pakistan suggested that there were human rights issues in Pakistan, that the Pakistani government failed to protect its people, that her police was untrustworthy, and that the death penalty was still imposed.  Further, security forces were implicated in extra-judicial killings in the country.

(4)  The Board failed to consider the COI[18] properly and/or with understanding of the cultural context of Pakistan.  It was shocking for the Board find no merit in the applicants’ contention that the Pakistani government was unable to protect her people when the applicants had demonstrated that their lives were at stake and they received no protection from the state.

(5)  The applicants could not relocate to other parts within Pakistan as Faisal had lived in Faisalabad, but his enemies still pursued him even after he changed his telephone number.  Such enemies also vowed to kidnap the 3^rd applicant to get information from the 1^st applicant.  Further, the 1^st applicant’s father was threatened and his house was vandalised even in 2016.

(6)  The Board and the Judge ignored the threats to the applicants, their fears and distress, and the concerns over problems with human rights abuse in Pakistan, and they merely went through the necessary legal procedures to dismiss the applicants’ case. 

(7)  Faisal and his family had been granted leave to apply for judicial review by this Court (differently constituted), but the applicants who were also victims in the same case were unfairly refused such leave.

15.  (2) appears to be a new assertion which had not been advanced by the applicants earlier.

16.  We heard the appeal on 18 May 2020. The 1^st and 2^nd applicants attended the hearing, but their daughter, ie the 3^rd applicant, did not. The 1^st applicant confirmed he also represented the 3^rd applicant.

IV.  LEGAL PRINCIPLES

17.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases:

(1)  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for new arguments to be run is limited.  In respect of new argument, the Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.[19]

(4)  Further, due to the difference in the role of the court in a judicial review and the role of the primary decision-makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision-makers have a positive duty to elicit such materials on their own volition.

(5)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant can flagrantly disregard the stringent time limit in Order 53 rule 4(1) of the Rules of the High Court Cap 4A.

V.  DISCUSSION

18.  On 3 September 2018, this Court (differently constituted) in CACV 218/2018[20] granted leave for Faisal and his family to apply for judicial review on the basis it was reasonably arguable that the Board did not give adequate reasons for rejecting Faisal’s testimony despite all the evidence produced by him,[21] and that the Board did not adequately address the evidence put forward by Faisal, namely (a) that the Board did not make any finding on the assertion that the gang went to the father’s home to look for Faisal in 2016 and to assault the father,[22] (b) that the Board did not explain why the threatening phone calls to Faisal whilst in Faisalabad could not have been a reason for his not moving again to Faisalabad,[23] and (c) that the Board did not properly consider the possibility in light of all the evidence that Faisal’s credibility need not be tainted despite discrepancies with the evidence of the 1^st applicant.[24]  Lam VP stated his views and findings at [14]-[18] as follows:

“14. In the present case, we are concerned if the Board gave adequate reasons for rejecting the evidence of [Faisal] and holding that the risk of harm was not substantial notwithstanding all the evidence produced by him. Though the Board referred to the medical report at paragraph 34 of its Decision and again at paragraph 111, the Adjudicator rejected the evidence of [Faisal] primarily because of the discrepancies between his version and that of his brother (see paragraphs 110 to 121). He also alluded to the unlikelihood of [Faisal] remaining in Karachi after his return from Faisalabad if there were threats as alleged instead of moving again to Faisalabad since he was a mere employee of a shop in Karachi (paragraph 129).

15. The Board was told of the gang going to the father’s home to look for [Faisal] in 2016 and they assaulted the father (see paragraph 99). The Adjudicator did not find it necessary to make any finding on this assertion.

16. [Faisal] had given evidence about the threatening phone calls he received whilst he was in Faisalabad. The Adjudicator did not explain why this could not be the reason for [Faisal] not moving again to Faisalabad.

17. All in all, the Board’s rejection of the account of [Faisal] hinges on the discrepancies with the evidence of his brother (P7) notwithstanding the production of the medical report which partly supported the case of [Faisal].

18. With respect, that does not fully address the evidence put forward by [Faisal].  The discrepancies can be attributable to inaccuracies in the evidence of the brother and it need not necessarily taint the credibility of [Faisal].  It seems to us it is reasonably arguable that adopting anxious scrutiny (or, as put by the judge, rigorous examination) the Board did not assess the evidence adequately.”

19.  Likewise, we have concern if the Board adequately addressed the evidence put forward by the applicants and/or gave adequate reasons for rejecting the evidence of the 1^st applicant and for holding the risk of harm was not substantial notwithstanding all the evidence produced by him and by Faisal, both of whom gave evidence at the oral hearing before the Board.

20.  The Board rejected the applicants’ case primarily because of the discrepancies between the version by the 1^st applicant and that of Faisal, and the view taken that it was not merely a failure on the part of the 1^st applicant to correctly recall dates of certain events.[25]  But the Board referred to the medical report in respect of Faisal’s injuries twice in its decision[26] (which report partly supported Faisal’s case[27]), and accepted the injuries Faisal said he sustained in the attack upon him were almost identical to the injuries the 1^st applicant said Faisal received when attacked (although they gave different years for the occurrence such incident).[28]  Both Faisal and the 1^st applicant gave evidence as to the court case involving Faisal’s employer in 2013.[29]

21.  This Court (differently constituted) found it reasonably arguable that the Board did not assess the evidence adequately for the non-refoulement claim by Faisal and his family, and granted them leave to apply for judicial review.[30] It seems to us that likewise the Board did not fully address the very same evidence put forward for the applicants’ non-refoulement claim, and did not adequately assess the possibility of the 1^st applicant failing to correctly recall dates if it were reasonably arguable that the credibility of Faisal’s case was not tainted.

22.  On a further incident particular to the applicants’ case, the Board was told that after Faisal and his family left Pakistan for Hong Kong in 2013, the gang continued to harass the 1^st applicant and his family such that they had to change the name of the 3^rd applicant to protect her, and to move away from their family home to go eventually to Gulshan-E-Maymar where in 2016 the 1^st and 2^nd applicants were attacked, and as a result the 1^st applicant suffered physical injuries and the 2^nd applicant was shamed by having her clothes torn and had a miscarriage.[31]  The 1^st applicant told the Director that the attackers were understood to belong to the MQM as they asked about Faisal, and that his father made a report to the police in vain as the police did not want to get involved in a matter related to the MQM.[32]  The 1^st applicant said this was followed by telephone threats, including threats to harm the 3^rd applicant if they did not reveal Faisal’s whereabouts.[33] But the Board did not make any finding on these assertions.  We are concerned if the Board gave adequate reasons for holding the risk of harm was not substantial.

23.  The Board was also told of the gang going to the father’s home to look for Faisal in 2016, and they assaulted the father.[34]  The Board also did not find it necessary to make any finding on this assertion.

24.  Faisal gave evidence about threatening phone calls he received whilst he was in Faisalabad.[35]  The 1^st applicant also gave evidence of threatening phone calls he received pressing for Faisal’s whereabouts.[36]  The Board did not explain why this could not be the reason for Faisal and his extended family, including the applicants, for not considering it a feasible option for them to move to Faisalabad.

25.  With respect, the Board did not fully address the evidence put forward.  Having considered all the materials before us and upon anxious scrutiny, it seems to us it is reasonably arguable that the Board had not assessed the evidence adequately, and the applicants had met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung.[37] For the above reasons, we would allow the appeal and grant leave for the applicants to apply for judicial review.  But the applicants must recognise that the granting of leave to apply for judicial review does not mean that the court will find in their favour in the end.

26.  In light of our views above, there is no need for us to deal with the ground raised in paragraph 14(2) above.  But upon reading the Board’s decision, it does seem to us that the focus of the Board’s analysis and decision was mainly on the claims by Faisal and his family.

27.  The applicants must file and serve their originating summons within 14 days in accordance with Order 53 rule 5 of the Rules of the High Court Cap 4A.  They should also serve the documents on the respondents and file affidavit of service in accordance with Order 53 rule 5(6). The judicial review will be processed by another judge in the Court of First Instance in the usual manner.