RE HUSSAIN SADAM

CACV 120/2018

[2018] HKCA 483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 120 OF 2018

(ON APPEAL FROM HCAL NO. 820 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 April 2018 refusing him leave to apply for judicial review.  The intended judicial review is against: (1) the decision of the Director of Immigration (“the Director”) dated 31 May 2017 rejecting his non-refoulement claim, and (2) the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 8 September 2017 dismissing his appeal against the Director’s decision.  

2.  By letter dated 30 April 2018, the applicant consents to the appeal being determined on paper without a hearing.  On 3 May 2018, the Registrar of Civil Appeals gave directions for the lodging of submissions by 23 May 2018.  On 6 June 2018, the applicant lodged with the Court three sets of a document which is a photocopy of Answer 35 of his non-refoulement claim form. We take that to be the submission that the applicant wishes to make to this Court in this appeal.  We set out below our decision on this appeal.      

The applicant’s non-refoulement claim

3.  The applicant is a Pakistani national.  He left Pakistan for mainland China on 3 August 2015, from where he entered Hong Kong illegally. He was arrested by the police on 8 August 2015 for remaining in Hong Kong illegally.  On the same day, he lodged a non-refoulement claim based on his fear that, if he were to be refouled to Pakistan, he would be subjected to ill-treatment or even killed by supporters of Pakistan People’s Party (“PPP”) and would be arrested by police because of a false report made against him. 

4.  The applicant was born and raised in Lahore, Punjab. According to the applicant, he and his family were supporters of Pakistan Muslim League (N) (“PMLN”).  The applicant was actively involved in helping with the business of PMLN.  In late 2009, on three occasions, the applicant was asked by people of PPP to join their party, but he refused. Among the PPP people were two men called Ali and Sajid, who were powerful people in the locality.  Sometime in March or April 2010, when the applicant and another PMLN supporter, Faizan, were outside the PPP office, six or seven PPP supporters, including Ali who was armed with a pistol and Sajid, came up to them and asked them to join PPP.  When they refused, the group hit them with bare hands and the butt of the pistol.  Before they left, Ali and Sajid threatened to kill them next time they saw them.  They also called the police falsely accusing the applicant and Faizan of initiating an attack on them.  The applicant sustained a cut wound in his left little finger, an open wound on his forehead, and bruises and swellings all over his body.  Faizan also had an open wound in his arm and bruises on various parts of the body.  When they were being treated in the hospital, the applicant was informed by his father that the police had gone to his home to arrest him.  

5.  After the attack, the applicant stopped helping out the PMLN.  About a month later, when the applicant was going to the PMLN’s office to meet a friend, he bumped into Ali, Sajid and their associates.  They threatened to kill him if he dared to help out in the PMLN office again.  The applicant quickly ran away.  After that, he stayed at home and kept a low profile.  One afternoon in mid-2010, when the applicant was riding a motor cycle with Faizan, he came across Ali, Sajid and four PPP people who were riding three motor cycles.  The group said they would kill the applicant and Faizan, and fired shots at them.  Faizan was armed with a pistol and he returned fire. In the course of the shooting, one of the PPP people and Faizan were shot in their legs.  After taking Faizan to hospital for treatment, the applicant went to Faisalabad to stay with his maternal uncle.  The applicant learned from his father that the PPP people had made a report that he and Faizan initiated the attack, and the police had been to the applicant’s house several times to look for him.

6.  On his maternal uncle’s advice, the applicant went to his paternal uncle in Dubai where he stayed from July 2010 to March 2015.  In between, he had returned to Pakistan to visit his family in September 2010 and February 2013.  When he was at the airport leaving Pakistan after the visits, he was told by the officers that he had an outstanding case.  He was nevertheless allowed to leave after giving the officers some money.  In March 2015, the applicant moved back to Pakistan, and again stayed with his uncle in Faisalabad.  After a while, due to fear of being attacked by the PPP people and arrested by the police, the applicant accepted his cousin’s advice to flee to Hong Kong.  With his cousin’s assistance, the applicant obtained a Chinese visa and departed Lahore for mainland China, and eventually entered Hong Kong illegally.     

The Director’s decision

7.  By a Notice of Decision dated 31 May 2017, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1] , BOR 2 risk[2] , persecution risk[3] and torture risk[4] . 

8.  In view of the low intensity and frequency of ill-treatments from the PPP people and the police, the Director assessed the level of risk of harm from the PPP people and the police upon the applicant’s return to Pakistan to be low.  The Director did not accept that the applicant was a wanted person, and considered that internal relocation was viable. Having considered the relevant Country of Origin (COI) information, the Director was of the view that state protection was reasonably available.  Taking into account the availability of state protection and internal relocation alternatives, the Director was further of the view the perceived risk would be lowered or negated.  The Director did not accept that upon the applicant’s return to Pakistan, he would face a real and personal risk of being subjected to ill-treatment prohibited by BOR 3 or of being arbitrarily deprived of his life in violation of BOR 2, or his fear of ill-treatment is well-founded as to warrant protection of the grounds of persecution risk.  The Director further considered the applicant’s problem with the PPP’s people was a private dispute that was not instigated, consented to or acquiesced in by the public authorities and that he had not been inflicted with any severe pain or suffering within the definition of torture.  

The appeal to the Board

9.  The applicant filed an appeal against the Director’s decision to the Board on 13 June 2017.  The Board decided not to hold an oral hearing and proceeded to determine the appeal on paper.  By its decision dated 8 September 2017, the Board dismissed the appeal. 

10.  The Board did not accept the applicant’s fear of being harmed or killed by Ali and Sajid and being arrested for a false case was well founded, and also shared the Director’s view that the dispute was purely private in nature and that state protection was available.  The Board therefore found the claim not made out under the ground of persecution risk.  The Board also found no case of BOR 3 risk as the applicant had not suffered severe physical or mental ill-treatment and state protection was available.  On the facts of the case, the Board considered BOR 2 risk was not engaged.  The Board further took the view that a case of torture risk was not made out given that the applicant did not sustain severe pain or suffering, he had no basis for fearing police investigation into the report against him, and there was no adverse involvement of government or public officials in his dispute with the PPP people.  Moreover, the Board considered the applicant could relocate to other cities in Pakistan without undue hardship.  The Board therefore concluded that the applicant’s appeal failed on all the applicable grounds. 

The application for leave to apply for judicial review

11.  The applicant filed his Form 86 on 30 October 2017 seeking leave to apply for judicial review against the decisions of the Director and the Board.  The applicant’s supporting affirmation filed on the same day advanced the following grounds in support of the intended judicial review:

(1) Lack of legal representation in the appeal before the Board amounting to violation of the high standard of fairness.

(2) Lack of language assistance in that he was not given a translation of his non-refoulement claim form and could not find out if the interpreter had properly translated the basis of his claim.

(3) Wrongful exercise of case management power in that the Director was selective in his approach to the COI information.  He disregarded the ongoing incompetency and inefficiency of the Pakistani police and further erred in finding reasonable state protection was available just because there were reforms in the country.

(4) Lack of fair hearing in that the Board should not determine the appeal on paper without an oral hearing.  This is because he did not have legal or language assistance in lodging the appeal, thus he should be given an opportunity to express himself properly in his first language.  Further, an oral hearing should be held since an appeal to the Board was a rehearing.

12.  The Judge held an oral hearing on 19 March 2018.  On 20 April 2018, he dismissed the application.  In the CALL-1 Form, after summarising the applicant’s case and giving due consideration to the decisions of the Director and the Board, the Judge dealt with the grounds of the application and gave the following reasons for refusing leave in [13] to [23] as follows:

“13. For his first ground of not being provided legal representation in his appeal before the Board, it is noted that he already had had the benefit of legal representation in presenting his case to the Director, but has provided no particulars as to what additional information or material that he could have put forward to the Board but unable to do so due to lack of legal representation.

14. Furthermore, as stated by the Court of Appeal in Balwinder Ram [2018] HKCA 171, CACV 278/2017, neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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: per Lam VP.

15. Even at this stage up to the oral hearing requested by him for his application now before me, the applicant failed to state or clarify what information regarding BOR 2 or BOR 3 or persecution risks that he wished to provide other than those already presented to the Director or the Board. I do not find anything amiss arising from lack of legal representation in his appeal before the Board, nor do I see any merit in this argument of his in his application.

16. As for his complain of lack of language assistance with no translation of his NCF provided for him under ground (b), it is clear that he was then legally represented under the Duty Lawyer Service and could have asked for such service either from his lawyer or failing which from the Director, whilst his complaint that there was therefore “no means for me to find out if the interpreter has been translating my basis of claim properly and could have potentially led to injustice” is entirely speculative, unrealistic and impractical. Accordingly and on the facts of the case presented by the applicant, I do not find anything amiss arising from any problem relating to interpretation in the process or any merit in this complaint of his.

17. For ground (c) there is simply no particulars or specifics provided by the applicant to justify his complain about the Director being selective in his reliance of COI in the consideration of the availability of state protection. It is clear that the Director did consider both the COI that corroborate the applicant’s concerns about police corruptions in Pakistan and those that show on-going reforms by the government to monitor and improve police efficiency. In fact the passage quoted by the applicant in paragraph 10 of his supporting affirmation demonstrates just that and that the Director did take a well-balanced approach in his reliance of the COI in the consideration of state protection available to the applicant which is certainly not selective as asserted by him.

18. Regarding the last complain under ground (d) of not being given an oral hearing before the Board, it was clearly stated by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 that there is no absolute entitlement to oral hearing, and that it is ultimately a question of fairness in the circumstances of each case, as Cheung CJHC explained in paragraph 26 of the judgment:

‘… there is no absolute right to an oral hearing. Amongst other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.’

19. In the present case there is no question that the applicant had attended a screening interview with legal representation before the Director with the opportunity to fully present his claim, and when his appeal came before the Board, the Adjudicator in deciding whether or not to call for an oral hearing did remind himself of the principle set out in ST v Betty Kwanabove, as he carefully explained in his decision under “Paper Review”:

‘16. There is no absolute right to an oral hearing. I have in the first place to consider, and have considered whether to order an oral hearing or a paper review. In arriving at this decision, and in the decision generally, I have considered the papers before me, including the Country of Origin Information (‘COI’) listed in the Appendix to the Notice of Decision.

17. Basically, a high standard of fairness is required in dealing with torture claims and indeed with the other claims concerned here. While a hearing is not mandatory it should only be dispensed with where the necessary standard of fairness can still be maintained. I am guided by the lengthy exposition of principle set out by Cheung CJHC in ST v Betty Kwan & Ors, CACV 115/2013 at paragraph 20 – 54.

18. With particular reference to the relevant paragraphs in ST, I have considered:

(a) whether there is anything missing from the Appellant’s case which might be brought out at an oral hearing;

(b) whether there is any point of fact or law which might be better brought out;

(c) whether there is any authority, for or against the Appellant, that should be addressed;

(d) whether there is any need for further questions, especially where an adverse inference may be drawn from the facts, in which case the Appellant should have the chance to address the point;

(e) whether there is any general advantage in holding an oral hearing, even though this might occasion extra trouble and expenses; and

(f) whether, in the name of overall fairness, the Appellant might have anything useful to contribute by way of being heard.

In each case, the answer is in the negative.’

20. It is therefore clear to me that in his consideration and assessment of the applicant’s claim of his fear of the risk of future harm from AL or SJ upon his return to Pakistan, the Adjudicator did not take issue with his case about his dispute with AL or SJ which he accepted as claimed but found to be a private dispute and not on account of race, religion, nationality or politics, something which he was entitled to on the facts before him and when he rejected such claim under BOR 2 and 3 risks and persecution risk.

21. Even now and despite filing a 9-page affirmation and appearing in an oral hearing before me in his leave application, the applicant still failed to state or outline what information or argument that he wished to provide or put forward but was unable to do so during the process before the Board. On the facts of the case and that the applicant had had the opportunity to present and advance his case fully before the Director and the Board, I do not find anything amiss or any unfairness arising from the lack of oral hearing in the process before the Board.

22. 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, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

23.       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 therefore refuse his leave application.”

Grounds of appeal

13.  In the Notice of Appeal filed on 30 April 2018, the applicant set out two grounds of appeal:

(1) While he did not inform the Board of the new address when he moved house, he was not informed and did not know that the decision would be sent to him by post. In the past, communications were done over telephone.

(2) It is not accepted that because he had utilised the channel of appealing to the Board, there was no room for judicial review.  It is not his case that an asylum seeker must have an absolute right to free legal representation at all stages of the proceedings. He did not present his case fully to the Director with legal representation because BOR 2 was determined without legal representation from the Duty Lawyer’s service, unlike some claimants who have their case, including BOR 2 ground, determined with legal representation.   

14.  As mentioned above, pursuant to the directions of the Registrar of Civil Appeals, the applicant lodged with the court a copy of Answer 35 of his non-refoulement claim form, which is in essence an account of the basis of his claim.

Our decision

15.  The grounds of appeal set out in the Notice of Appeal bear no relationship to the applicant’s case at all.  The first ground looks like an explanation for delay.  In this case, however, there was no delay in the applicant’s appeal to the Board, or his application for leave to apply for judicial review.  This appeal was also brought within time.

16.  In the second ground, the reference to lack of legal representation was made in the context of the determination on the BOR 2 ground.  However, unlike some other cases in which the Director made a separate and further determination of the claim under the BOR 2 ground after his decision on the other applicable grounds, in this case the Director assessed the BOR 2 ground together with the BOR 3, persecution and torture grounds.  The applicant had the assistance of lawyer assigned by the Duty Lawyer Scheme for the screening process and interview with the immigration officer.  The complaint about lack of legal representation in the determination of the BOR 2 ground is therefore misplaced.

17.  As for Answer 35 of the non-refoulement claim form lodged by the applicant in this appeal, it is an account of the basis of the applicant’s claim.  This Court has repeatedly emphasised that judicial review does not operate as a rehearing of the non-refoulement claim.  Evaluation of the claim and assessment of its merits is a matter for the Director and the Board, who are the primary decision makers.  The Court in a judicial review exercises a supervisory role.  As such, its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  Hence, providing this Court with the account given to the Director in support of the applicant’s claim, without indicating its relevance to the appeal, does not serve to advance the applicant’s appeal.  

18.  Having reviewed the decisions of the Director and the Board and the reasons given by the Judge for refusing leave to apply for judicial review, we agree with the Judge that there is no error of law or procedure in the decisions of the Director and the Board or any unfairness in the process, that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused. 

19.  Accordingly, we dismiss the appeal.