RE BUTT ASIF ELLAHI

CACV 491/2020

[2021] HKCA 786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 491 OF 2020

(ON APPEAL FROM HCAL 2100 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 BUTT Asif Ellahi, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 28 July 2020 (“Judge’s Decision”) 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 24 September 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”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 1 March 2017 (“Director’s Decision”).

Basis 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 43, is a fear of (1) being harmed or even killed by one Abdul Rahman (“Rahman”), a key supporter of a rival political party, the Pakistan Muslim League (Quaid e Azam Group) (“PML(Q)”), over the death of a man of Rahman in a fight; and (2) being arrested by the Pakistani police and/or authority if he should return to Pakistan.

3.  The circumstances giving rise to such fear have been set out in detail in paragraph 8 of the Director’s Decision and paragraph 11 of the Board’s Decision and in gist in [2] to [5] of the Form CALL-1 dated 28 July 2020, [2020] HKCFI 1593 (“Form CALL-1”). 

4.  Briefly:

(1)  The applicant was a supporter of the Pakistan Peoples Party (“PPP”) and put up banners and posters for, and attended rallies and demonstrations of, the PPP in his hometown.

(2)  One day in early 2015, the applicant and some fellow PPP supporters ran into Rahman and an unknown man who swore at the applicant and his group.  They also verbally disparaged the PPP and demanded them to quit the party.  One of the men with the applicant ended up hitting the man with Rahman on the head with a wooden stick.  The applicant immediately fled from the scene and went home.  On his father’s advice, fearing revenge from Rahman, the applicant left home that night to take shelter with someone else in the neighbourhood.

(3)  On the following day, the applicant’s brother told him that Rahman and some people had gone to their family home to look for him, and when they could not find him, they fired their guns into the sky and threatened to kill the applicant when they found him.  His brother advised him not to return home.

(4)  The applicant stayed with his brother-in-law’s friend in Daska, Sialkot the next day.

(5)  The injured man passed away a few days later.

(6)  The applicant was subsequently told by his family that his father had hearsay information that the incident had been reported to the police and the attacker identified and arrested, though the applicant’s name was also in the first incident report.  The police asked the applicant’s father for, but he refused to disclose, the applicant’s whereabouts.

(7)  Although the applicant remained in Daska for 8 to 9 months without any incident, he kept receiving news from his family that Rahman and his people had been looking for him. 

(8)  In around May/June 2015, he resolved to leave Pakistan.  He proceeded to applied for a passport and a visitor’s visa to China, both of which he obtained without difficulty.

(9)  On 2 October 2015, he departed for China.

Illegal entry into Hong Kong and lodgment of NRF Claim

5.  The applicant entered Hong Kong illegally on 8 October 2015.  He surrendered to the Immigration Department on 13 October 2015.  He raised the NRF Claim by written representations dated 5 and 19 July 2016.

Director’s Decision

6.  In processing the NRF Claim, the Director took into account the information provided by the applicant in his Non-refoulement Claim Form dated 24 November 2016 and at the screening interview on 3 February 2017.  The applicant then had legal advice and representation from the Duty Lawyer Service.

7.  The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  First, the low intensity and frequency of the alleged past ill-treatment from the applicant’s perceived enemies, which in any event did not attain a minimum level of severity, indicates a low future risk of harm from them upon the applicant’s return to Pakistan.  In fact, the applicant did not have any further encounter with Rahman after the said fight.

(2)  As for the fear of being arrested by the Pakistani police, it is based entirely on hearsay and speculation.  Anyways, it would be reasonable for the police to invite the applicant to assist in the investigation on his return to Pakistan.

(3)  Second, the availability of state protection would further lower or even negate the perceived risk (if any).  There is objective country of origin information (COI) showing that reforms have been and are ongoing in Pakistan with objective indications of positive results in recent years.  There are also other avenues to seek protection and justice in Pakistan.

(4)  Third, any perceived risk, which is in any event localised, can be further negated or reduced by the availability of reasonable internal relocation alternatives in Pakistan.

Appeals to Board and Board’s Decisions

8.  The applicant appealed against the Director’s Decision to the Board on 9 March 2017.

9.  A rehearing of the NRF Claim was scheduled on 8 May 2018.  An English/Punjabi interpreter was present to assist the applicant.  The applicant, however, refused to answer any questions by the Board, saying that it could make its decision based on the evidence in the hearing bundle.  The applicant maintained the same stance and left the hearing despite having been told by the Board that it had a number of questions which raised issues as to the credibility of the NRF Claim and that if they were not answered, the Board might not be satisfied that there is a real risk of harm to the applicant if he returns to Pakistan.

10.  The Board dismissed the applicant’s appeal on all the said grounds for non-refoulement protection on 24 September 2018.

11.  More particularly, the Board found the credibility of the NRF Claim undermined by the applicant’s inconsistent evidence as to whether he is a member of the PPP or not.  The Board was not satisfied that the alleged incident in early 2015 occurred at all either.  The Board also did not accept any of the chain of events alleged by the applicant that occurred from that time until his departure from Pakistan or that the applicant faces any risk of harm whatsoever from the PML(Q), Rahman or his associates.

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 2100/2018 on 3 October 2018, the applicant sought leave to apply for judicial review of the Board’s Decision.  By the supporting affirmation of the same date and submission by letter dated 22 November 2019, he proposed grounds for judicial review which the Judge summarised in [10] of the Form CALL-1 as follows:

“(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Pakistan;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Pakistan and misdirected himself as to the extended meaning of state protection;

(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision;

(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure;

(9) that the Board unlawfully fettered its discretion in refusing his appeal on the ground that it did not satisfy the requirement;

(10) that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(11) that the Board’s decisions in refusing his appeal were unreasonable or irrational in the Public Law sense or the result of procedural errors or unfairness;

(12) that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(13) that the Board failed to apply high standards of fairness owed to a self-represented claimant;

(14) that the Board had significantly relied on sources of news not officially recognized or were hearsay or outdated that resulted in groundless speculation that it would be safe for the Applicant to return to his home country; and

(15) that the hearing bindle which was all in English was provided to the Applicant without giving him sufficient time to prepare for the appeal before the Board.”

13.  After a hearing in open court, at which the applicant was present and assisted by a suitable interpreter, the Judge refused leave for the reasons stated in [11] to [17] of the Form CALL-1:

“11. These are however all just broad and vague assertions of the Applicant 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 did the adjudicator fail to apply high standards of fairness or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient, or how did the Board unlawfully fettered its discretion or acted in a procedurally unfair manner in dealing with his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 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.

13. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle all in English being provided to him without given him insufficient time to prepare for his appeal. However, even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

14. Essentially his claim was rejected by the Board on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 73 of its decision upon his refusal to give evidence or to answer questions raised of his credibility despite being advised to do so at his appeal hearing, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant for sufficient particulars or elaborations, I do not find any reasonably arguable basis to challenge the finding of the Board.

15. Furthermore. the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim regarding threats from PML(Q) is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. 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.

17. 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 - grounds of appeal and submission

14.  By a notice of appeal filed herein on 21 September 2020, the applicant appealed against the Judge’s Decision on the following ground (sic):

“I would like request to court could you please save my life as a human been my life is danger’s in origin country in Pakistan that’s why I can’t go back to Pakistan.”

15.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 17 March 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

16.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

17.  The hearing date on 24 May 2021 was therefore vacated and the applicant was debarred from lodging any written submission.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

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

18.  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

19.  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[5]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

20.  As summarised in [7] and [11] above, the NRF Claim failed on the facts at both stages of the unified screening mechanism.  The questions whether the applicant would be at risk of life or torture if he is refouled to Pakistan and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  The applicant has not advanced any ground of appeal, properly so called, that tackles the negative findings of fact against him.  Indeed, the much-repeated bare assertion in the notice of appeal that his life is in danger in his home country is inconsistent with the findings of both the Director and the Board.

21.  In short, the applicant did not in the notice of appeal identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

Disposition

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