HUSSAIN RAFAQAT v. EVAN RUTH, ESQ

CACV 341/2018
[2019] HKCA 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 341 OF 2018

(ON APPEAL FROM HCAL 878 OF 2017)

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J U D G M E N T

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

Introduction

1.1.   This is an appeal by Mr Hussain Rafaqat (“the appellant”) from an order of DHCJ Bruno Chan (“the judge”) given on 13 July 2018 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)¹. 

1.2.   The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 9 November 2017 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.1.   The appellant is a national of Pakistan.  He alleged that he farmed the family farmland for about 13 years.  The farmland was purportedly inherited by his father and uncle from their grandfather in equal shares.  I will refer later to alleged events concerning the farmland.

2.2.   The appellant entered Hong Kong through the Mainland illegally on 9 June 2011 and was arrested by the police on 11 June 2011.  He lodged his claim on 14 June 2011 for non-refoulement claiming that if he returned to Pakistan, he would be harmed or killed by his uncle for the farmland and his refusal to join his uncle’s political party Pakistan Muslim League (N) (“PML(N)”).  After assessment by the Director, his claim was rejected. 

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision dated 9 November 2017 (“the TCAB’s Decision”) and in gist in the Judge’s Decision.  Put briefly, his allegations are as follows:- 

-   The appellant alleged that since from about 1998 to 2011, he had been farming on the family farmland.

-   The farmland was purportedly inherited by his father and uncle from their grandfather in equal shares.  The uncle had been contending that he should take over the whole farmland.  The appellant alleged that his uncle was rich and powerful as he had strong ties with a PML(N) member of the National Assembly of Pakistan.  Due to the persistent refusal by the appellant’s family to join PML(N), the dispute between the appellant and his uncle accelerated.

-   On 15 February 2011, the appellant and his brother, Majeed, were attacked by the uncle and 4 unknown men armed with a rifle and wooden clubs while they were working on the farmland.  The appellant was injured during his escape.

-   The appellant believed that his brother was kidnapped by the uncle.  He took his father’s advice and hid at the mountain side of Azad Kashmir (which was near his aunt’s place) for 4 months like a refugee.

-   Fearful of being hurt by the uncle, the appellant then left Pakistan for China using his passport and entered Hong Kong illegally. 

-   The appellant was informed by his father that his missing brother was found lying unconscious in 2014 and was under medical treatment.  The farmland was now under the control of the uncle.     

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.   What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.   “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.   “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.   What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decisions

6.  The Director’s representative conducted various interviews with the appellant.  The appellant had legal assistance to prepare his claim.  After the interviews, the Director concluded that the appellant had failed to make out his claim.  The Director rejected the appellant’s claim for non-refoulement for reasons set out in a decision given on 17 June 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a further decision given on 18 September 2017 in respect of “BOR 2 risk" (“the Director’s Decisions”).  

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB which held a hearing on 3 October 2017 at which the appellant was present.  

7.2.   The TCAB found that the appellant’s oral testimony was vague, incoherent and fundamentally inconsistent with his statements made to the Director and thus concluded that the appellant’s account was not one which related to real events and no credence could be attached to his statements: see [25]-[42] of the TCAB’s Decision.  For instance, he could not describe the farmland, he gave inconsistent statements whether the uncle had personally participated in the attack, and when his grandfather died.  The TCAB found that the appellant was not a credible witness and confirmed the Director’ Decisions that the appellant had failed to establish his claim for non-refoulement under all applicable grounds.  Further, as the judge put it,

“13. Furthermore, given the fact that the applicant’s claim was rejected by the Board essentially on his credibility for the detailed reasons set out in paragraphs 25-42 of its decision, any attempt to challenge the Board’s reliance of COI to assess the situations of state protection or violation of human rights in Pakistan seems to me future and pointless, as it is a well established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers. With the adjudicator’s clear findings against the applicant on the core of his claim that he had been attacked due to the dispute over the farmland between his family and his uncle for which the Board was perfectly entitled to reject his claim, I do not find any basis or merits in these complaints of the applicant.”

7.3.   For the above reasons, TCAB dismissed the appellant’s appeal for the detailed reasons set out in the TCAB’s Decision. 

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision, with Evan Ruth, Esq and the Director named as the putative respondent and putative interested party respectively.

The Judge’s Decision

9.1.   The appellant appeared at the hearing before the judge. 

9.2.   As mentioned earlier, the judge refused leave for reasons set out in his Decision, in particular

“12. These are all very 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 Board or the adjudicator had erred in their decision, or in what way did the adjudicator fail 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. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13. Furthermore, given the fact that the applicant’s claim was rejected by the Board essentially on his credibility for the detailed reasons set out in paragraphs 25-42 of its decision, any attempt to challenge the Board’s reliance of COI to assess the situations of state protection or violation of human rights in Pakistan seems to me future and pointless, as it is a well established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers. With the adjudicator’s clear findings against the applicant on the core of his claim that he had been attacked due to the dispute over the farmland between his family and his uncle for which the Board was perfectly entitled to reject his claim, I do not find any basis or merits in these complaints of the applicant.

14. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.

15. 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 SCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to him when he still had legal representation, whilst his SCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to properly prepare for his appeal at his oral hearing to the adjudicator. In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

16. In the premises and having proceeded to consider 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 prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal dated 25 July 2018, the appellant appealed the judge’s order to this court.  The appellant set out the following grounds of appeal in attachment A of the Notice of Appeal:

“I, HUSSAIN RAFAQAT solemnly and sincerely affirm and say as follows:

1. As you know that my claim is based upon my fear that if I returned to Pakistan, I would be harmed or kill by my uncle AFRIF HUSSAIN because I refuse to join PMLN.

2. My uncle is a strong member of this party and he always force us to join his party, and he had been long contending that he should totally take over the whole farmland to gelding more crops.

3. When we refuse that we cannot give the vote to your PMLN, just because of this my uncle and other 4 men armed with rifle and wooden clubs attack on us while me and my brother Majeed was working on the farmland they try to shot me but I manage to flee in the farmland but my brother Majeed kidnapped by them and I had many injuries even I still feel pain on my right arm.

4. I cannot report in police because our police is also never help poor people and they also support the PMLN because they always offer them a lot of money.

5. I tried to live in many areas of Pakistan and had faced a lot of problems while I stay in unconditional places, you can’t imagine how hard was that time for me.

6. I have now been advised by many people that my uncle and his party is very strong and powerful and they will kill you easily, therefore I decided to leave Pakistan and I came to Hong Kong to save my life.

7. I also want to go back see my family and live safely in Pakistan but if I return to Pakistan, I think my first fear will be my uncle and his party and as well as the police because they already informed all the department.  That’s why they can catch me and kill me easily.”

Legal Principles

11.  It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.   The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin (“Country of Origin Information”, or “COI”).  

11.2.   When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration²and I will not repeat them here.  

11.3.   Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong³.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall⁴are satisfied.   Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

13.  The various grounds advanced by the appellant were essentially restated allegations of fact in support of his claim for non-refoulement, which had been canvassed before the TCAB and rejected for being inconsistent.  We do not see any valid grounds for the appellant’s appeal.

14.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

15.  The appellant’s allegations had already been thoroughly examined by the TCAB on the facts and the judge was correct in holding that the TCAB was entitled to make the findings that it did.  As explained earlier, the appellant is not permitted to ask for yet another re-hearing of arguments on facts at this stage of the appeal process. 

16.  We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

17.  For the reasons set out above, this appeal must be dismissed.