ALI MALIK ASAD v. TORTURE CLAIMS APPEAL BOARD

CACV 183/2017
[2018] HKCA 39

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 183 OF 2017

(ON APPEAL FROM HCAL NO 162 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Au-Yeung J on 18 July 2017 refusing leave to the applicant to apply for judicial review. The applicant came to Hong Kong illegally in early December 2013. He was arrested on 9 December 2013. On 12 December 2013 he lodged a non-refoulement claim. The claim was based on alleged threats of harm from Shia Muslim members (led by one person called ZS) in his native village in Lahore, Pakistan. The applicant is a Sunni Muslim.

2.  The Director decided against the claim on 31 May 2016.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a supplemental decision of 27 January 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant. 

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 6 February 2017, the Board dismissed the appeal on 31 March 2017. 

4.  The intended judicial review was in respect of the decision of the Torture Claims Appeal Board.  The Form 86 filed by the applicant on 27 April 2017 did not contain any grounds for seeking relief.  In his affirmation of 27 April 2017, he said as follows:

“ There are many irrelevant points and errors in decision made by Torture Appeal claims board. I was not able to submit my additional facts and grounds regarding to my non-refoulement claim Article 2. I had never got any invitation letter by which Immigration asked me to submit additional facts and Immigration Officer has issued me further notice of decision without any scerrening [screening] interview which is totally unfair and Appeal Board also followed the formula practice of Immigration Decision maker just relied on previous grounds and those COI information which were favor to reject my claim. Actual life accrue different situation then mentioned the evidences of the violence towards minorities searching for ‘unrealistic’ silver lining. The Decision betray a bias and formula approach unlikely fairly assess the danger of my life and clearly calculate to reject my claim.”

5.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [21] to [41] of the CALL-1 Form:

“ 21. The intended grounds for judicial review, as set out in the affirmation of the applicant are summarized as follows:

(a) There were many irrelevant points and errors in the TCAB’s decision;

(b) The applicant never got any invitation letter by which the Immigration Department asked him to submit additional facts and information as regards Article 2 (presumably meaning BOR2 risk); and the Immigration officer has issued a further notice of decision without any screening interview;

(c) The TCAB followed the formula practice of the Immigration Decision maker. It just relied on previous grounds and those COI which were against the applicant;

(d) The decision betrayed a biased and formula approach;

(e) The danger to the applicant’s life was not fairly assessed and was clearly calculated to reject his claim.

22. The applicant expanded on these grounds in his undated statement to the court which I have considered.

Ground (a) - irrelevant points and errors in TCAB’s decision

23. The applicant has not identified what the irrelevant points and errors were. Ground (a) has no merits.

Ground (b) – Applicant did not receive an invitation letter and the Immigration Officer issued a further notice of decision without any screening interview

24. The Immigration Department had issued a letter dated 12 January 2017 (“the Letter”) to the applicant at his address at Room C, 7/F, Ki Lung Street, Sham Shui Po, Kowloon (“the Address”), inviting him to provide additional information as regards his BOR2 claim. It was the same address stated in the applicant’s affirmation filed in support of Form 86. The Immigration Department followed up with a letter dated 27 January 2017 setting out its decision on the BOR2 claim although no additional information had come from the applicant.

25. In the present application, the applicant has not explained why the Letter was not received whereas all other documents from the Immigration Department, including the Director's Decision, and the Director's further decision by letter dated 27 January 2017, were all sent to the Address.

26. However, the failure to receive the letter dated 12 January 2017 had not prejudiced the applicant. The Adjudicator had considered the BOR2 risk. Although the Adjudicator had not set out the authorities, he had correctly guided himself on how he should approach the appeal as a rehearing and that he was not bound by the Director’s Decision. There was no error law or procedure on the part of the Adjudicator.

27. In his undated statement to the court, the applicant stated that he disagreed with the decision maker’s decision that BOR2 in relation to death and genocide was not engaged. He went on as follows:

“ … my family has been tortured and they [unidentified persons] had burnt my family home just looking and searching me so it shows clear indicates of genocide and death threat risk.  Last time officer has refused my claim and mentioned that I never sought help from the police or any of the authorities in my country but these current situation is showing clearly that even my mother was seeking for justice and help from police but Police or any other high authorities were failed to provide her justice and she is suffering these all ill-treatment and mental suffering.”

28. There is nothing before this court to show that evidence concerning the preceding paragraph had been brought to the attention of the Adjudicator. However, even if one accepts what was stated in the preceding paragraph was true, it fell far short of establishing genocide.

29. Under Article II of the Convention on the Prevention and Punishment of the Crime of Genocide,

“ … genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

30. Even accepting that the applicant’s family was tortured and that his family home was burnt, there was nothing to show that those acts were directed at a “group”. 

31. Ground (b) has no merits.

Ground (c) – TCAB followed the formula practice of the Immigration decision maker

32. It was not clear what was meant by “formula practice” of the Immigration Decision maker.  There was an oral hearing held by the Adjudicator.  Having heard the applicant’s evidence, the Adjudicator had come to independent findings of facts. 

33. For BOR3 risk and risk of torture, the applicant must meet two main requirements: he must establish (i) that the ill-treatment which he would face if expelled attains what has been called “a minimum level of severity”; and (ii) that he faces a genuine and substantial risk of being subjected to such mistreatment.  It is clear that a very high threshold must be surmounted to establish each of those requirements.  Ubamaka Edward Wilson v Secretary for Security & anor, FACV No 15 of 2011, 21 December 2012, §172.]

34. On standard of proof for BOR3 risk: First type of proof is risk of torture, ie likelihood or probability of the torture claimant being subjected to torture if he were to be expelled, returned or extradited to a particular country.  The “standard of proof” required is “more than a mere possibility” but not needing to be “highly likely”: TK v Jenkins, CACV 286/2011, 21 November 2012, §28, CA.

35. In making his findings on credibility, the Adjudicator was well aware that the standard of proof (which he erroneously stated to be “burden of proof“) “was not high”.  The findings were open to him on the evidence before him.  The fact that the Adjudicator had come to the same conclusion as the Director did not mean that there was a “formula practice” that the Adjudicator had followed.

36. The applicant has not identified what grounds other than those before the Director that the TCAB had failed to rely on.

37. In terms of COI, TCAB has not relied on any COI because the Adjudicator simply did not believe the applicant’s evidence on the conflict between him and Shah.  There was not even a case that the applicant had met the threshold of showing ill-treatment that attained a minimum level of severity or that he faced a genuine and substantial risk of being subjected to such mistreatment. There was no need to further consider the COI.

38. I would add that it was the Director who had considered COI both for and against the applicant: §§16-17 of the Director's Decision.   What weight the Director attached to each set of COI was within his discretion.  It has not been shown how the Director had erred in relying on the COI as he did.

Ground (d) – the decision betrayed a biased and formula approach

39. I repeat my comments under Grounds (b) and (c) above.  The applicant has failed to show in what way the Adjudicator was biased.

Ground (e) – danger to applicant’s life not fairly assessed and was clearly calculated to reject his claim

40. I repeat my comments under Grounds (b) and (c) above.

Conclusion

41. None of the grounds put forward by the applicant is arguable.  I therefore refuse to give leave to apply for judicial review.”

6.  In the notice of appeal of 14 August 2017, the applicant only advanced one ground of appeal.  The ground focused on the judge’s observation at [18] regarding the lapse of time between the decision of the Director of 31 May 2016 and the application in the Form 86.  It was actually a non-point because in the Form 86, the decision in respect of which relief is sought was the decision of the Board. 

7.  As seen above, the judge dealt with the applicant’s intended challenge of the Board’s decision on the merits.   

8.  The applicant agreed by a letter of 21 August 2017 that the appeal can be heard by two judges.

9.  The applicant lodged written submissions in support of his appeal on 11 January 2018.  In the submissions, in addition to the ground he raised in the notice of appeal, he also relied on Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 and FB v Director of Immigration [2009] 2 HKLRD 346.  He said he was not given legal or language representation at the appeal before the Board and the application for judicial review.  He also said there was a lack of transparency in the assessment of BOR 2 risk in that he did not have the benefit of Duty Lawyer Service in that process. 

10.  We note that these were not the same grounds as those put forward in his Form 86. An appeal is not the occasion for an applicant to shift his grounds after the original grounds failed to succeed at the court below.  This principle is equally apposite in an appeal against the refusal of leave. Otherwise, an applicant could flagrantly disregard the time limit in Order 53 Rule 4(1).

11.  We heard the appeal on 18 January 2018. 

12.  The grounds in the submissions, apart from being new grounds not raised before the judge, were also obviously unmeritorious.

13.  The intended challenge based on lack of translation has no merit.  Interpretation service was provided by Mr Khan, an Urdu interpreter, at the hearing before the Board.

14.  As regards the challenge based on lack of legal representation, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187, the principles discussed in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 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.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration including presence of lawyer at the interview by the immigration officer.

15.  The judge had dealt with the allegation of the applicant that he did not receive the invitation to submit additional information on BOR 2 risk at [24] to [26] of the CALL-1 Form. We also agree with the judge that the Director as well as the Board gave fair and adequate assessment of BOR 2 risk.

16.  The applicant’s claim under BOR 2 was actually founded on the same primary materials relating to his other claims (prepared with legal representation). 

17.  The applicant also had full opportunity at the oral hearing of 6 February 2017 to advance his case, including his case on BOR 2 risk, before the Board. On that occasion, he did not mention anything about his family being tortured or his house being burnt down (as he did in his unsworn written statement placed before the judge). He could not explain why he did not put forward this important piece of information before the Board if such allegations were true.   

18.  In the circumstances, we do not find anything amiss arising from lack of legal representation in the proceedings before the Board and in the BOR 2 assessment.

19.  Having considered the submissions of the applicant in light of the materials before us, we find the judge’s observations to be justified.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

20.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.