KHAN SHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 368/2018

[2018] HKCA 934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 368 OF 2018

(ON APPEAL FROM HCAL 629/2017)

________________________

________________________

___________________

J U D G M E N T

___________________

Hon L Chan J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 30 July 2018 in HCAL 629/2017 refusing leave to the Applicant to apply for judicial review.  The Applicant is a Pakistani national.  He entered Hong Kong illegally on 21 October 2013 and was arrested by police on the same day.  On 25 October 2013, he raised a non-refoulement claim.  His claim was based on his fear that he would be harmed or even killed by Babar Ayub (“BA”), his business partner and BA’s men in Pakistan because BA wanted to seize his share of the business, his money and property. 

2.  The background facts are sufficiently set out by the Judge in a notification of the Judge’s decision (which is called “CALL-1 Form”) at [2018] HKCFI 1673.  The gist is as follows.  The Applicant was born on 1 March 1975 in Pakistan.  He is a Sunni Muslim.  He had education up to the age of 19.  He was an active supporter of a political party, the Pakistan Muslim League (N).  He ran a business with BA in import and export of food from 2005 to 2011.  It made huge profits. 

3.  BA was a Shia Muslim and an active supporter of another political party, the Pakistan Tehreek-e-Insaf Party (“PTI”).  BA’s late father was a high-rank official and was permitted by PTI to be elected in elections.  The influential Station House Officer (a high-ranking police officer) in the local area was BA’s cousin.

4.  One day in March 2011, the Applicant was kidnapped by some masked men who alleged that they were instructed by BA to do so.  They demanded a ransom of 1.5 million Pakistan rupees from him.  He could not pay.  He was beaten up and given injections.  BA wanted to seize his share of the business, his money and home.  He was forced at gun point to sign some documents including a cheque for 1.5 million Pakistan rupees payable to BA.  The kidnappers managed to make his family pay the 1.5 million Pakistan rupees.  He was released after several days and his relatives sent him to a hospital.

5.  He went home after discharge from the hospital.  BA threatened him repeatedly on the phone to frame him up. He said the police would torture him to death if he did not surrender his house.  He refused but dared not report the matter to the police because the kidnappers had threatened him not to.  The Station House Officer of the local area was called Saeed and was BA’s cousin.  Saeed had gone to his home with some policemen to demand the payment of 1.5 million Pakistan rupees to BA.  He also did not report the matter to higher authorities for fear of Saeed and the police. 

6.  In June 2011, he fled to Karachi with his family and lived there with his parents-in-law.  He learnt that BA had complained that he had not honoured the 1.5 million-rupee cheque and he was a wanted person in Pakistan.  BA called him in September 2013, told him that his presence in Karachi was known and threatened to kill him because he had not surrendered his house.

7.  He left for China on 3 October 2013.  He later entered Hong Kong illegally and was arrested on 21 October 2013.  He raised a non-refoulement claim on 25 October 2013 whilst in detention. 

8.  He did not think he could relocate within Pakistan for want of resources, knowledge and connection.  BA could also find him with BA’s connections and relationship with the police and the PTI.

9.  By a notice of decision dated 3 May 2016, the Director of Immigration (“the Director”) decided against the Applicant’s claim.  The decision covered the BOR 3 risk[1], torture risk[2], and persecution risk[3]. By a further decision of 23 June 2017, the Director also rejected the Applicant’s claim on the BOR 2 risk[4].

10.  The Applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 8 August 2017, the Board dismissed the appeal on 8 September 2017.  The Board, having considered all the materials and oral evidence of the Applicant, rejected the Applicant’s case that he had been abducted and received death threats by BA’s men: see [5] to [9] of the Board’s decision.  The Board found that the Applicant was an unreliable and incredible witness.  But even on his own version of facts, there was no evidence suggesting that he had suffered ill-treatment to a minimum level of severity.  There is also a possibility of internal relocation to avoid BA’s threat and the availability of state protection that would further lower the risk.  The Board held that the Applicant had failed to establish a case of non-refoulement under all applicable grounds.

The Judge’s decision

11.  On 18 September 2017, the Applicant applied for leave for judicial review.  The intended application was in respect of the decisions of the Director and the Board.  The form 86 he filed on 18 September 2017 did not contain any ground for relief.  In the supporting affirmation, he put forward the following grounds for judicial review:

(1)   The Board cherry-picked country of origin information (“COI”).

(2)   The decision is like ‘formula work’ and biased.

(3)   The Board refused the Applicant’s claim without an oral hearing.

(4)   The Applicant did not receive the Director’s letter inviting him to submit additional facts for his claim.

12.  In pages 24 – 28 of Exhibit “A” attached to the affirmation, the Applicant had more complaints. He accused the Director and the Adjudicator of failing to consider his claim carefully.  He complained that he was not provided with further legal representation.  He also complained that the Director did not hold any screening interview in relation to BOR 2 risk. However, contrary to what he said in his affirmation that he had not received the Director’s letter inviting him to submit additional facts for his BOR 2 risk claim, he agreed that he had received the letter and had submitted additional facts and grounds on BOR 2 risk. 

13.  The Applicant also complained that the ‘decision-maker’ had failed to carry out sufficient research and inquiry of the COI; to consider relevant information; to give sufficient weight to the past ill treatment to him; to understand the injustice of the government and police and violation of human rights in Pakistan; to properly evaluate his claim; to clearly state the reasons for the decisions; and had ignored information favourable to his claim; cherry-picked information; taken into account information of little or no relevance; and rendered wrong and unfair decisions.

14.  On 30 July 2018, the Judge gave his decision refusing to grant leave to the Applicant to apply for judicial review.  The Judge, after summarizing the background of the case and the decisions of the Director and the Board in the CALL-1 Form, gave the following reasons at [37] – [52] for his refusal to grant leave:

“Discussion

37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’[5].

39. It is wrong for the Applicant to say the Adjudicator refused his appeal without hearing. The hearing took place on 8 August 2017. The Applicant was present. He actually testified and answered the Adjudicator’s questions.[6]

40. The Applicant complained he was not invited by the Director to make oral submission on the BOR 2 issue.

41. In response to the Director's letter dated 5 June 2017, the Applicant sent to the Director a letter dated 19 June 2017. The Director had taken into account of what the Applicant said in that letter. The Applicant was merely repeating his earlier allegations. As such, the Director was entitled to proceed to consider the Applicant's claim without holding further interview. The Applicant failed to tell this court what more submission he could make if there was an interview on the BOR 2 issue.

42. In court, the Applicant complained he was given the appeal bundle only shortly before the Board hearing. He did not know English and he had no legal representation.

43. The Applicant had legal assistance from the Duty Lawyer Service up to the Director’s decision coming out on 3 May 2016. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[7]

44. I accept the Applicant did not know English. He certainly needed language assistance. In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with documents for him. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

45. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[8] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[9], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

46. The Director confirmed in his letter dated 27 June 2018 that the Applicant received the appeal bundle 7 days prior to the appeal hearing scheduled for 8 August 2017. The appeal bundle was served 7 calendar days (or 6 working days) prior to the Board hearing. The service was made in time.

47. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not complicated. There was no evidence to show the appeal bundle was difficult or voluminous.

48. A few days were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened.

49. The Applicant further complained he was not given time to get hold of some documents to prove his stay in the hospital after the alleged kidnap in 2011.

50. The Applicant had been in Hong Kong since October 2013. If he had really wanted to rely on the alleged 2011 hospital records, he would have had all the time to get hold of such proof. There is no ground for him to complain that he was not given time by the Director or the Adjudicator to get hold of the alleged documents.

51. There are other vague complaints raised by the Applicant. I have reviewed the decisions of the Director and the Adjudicator under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had considered the Applicant's case carefully and applied the law correctly. They had proper basis to make their findings, conclusions and decisions which were not Wednesbury unreasonable. They had each engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Director and the Adjudicator gave due consideration of his claim. They applied the law correctly. They made no errors of law and there was no procedural unfairness. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in any of the Applicant's complaints.

Conclusion

52. The Applicant’s complaints are not reasonably arguable either against the Director or the Board.  He has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant him leave for the review.”

The Appeal

15.  In the Notice of Appeal filed on 6 August 2018, the Applicant put forward the following grounds of appeal:

“The gravity of my circumstances have not been gauged by both defendants while considering my claim. I should be given an opportunity to express my case.”

16.  The Applicant lodged two skeleton submissions for this appeal.  The first one was lodged on 20 August 2018 together with the appeal bundles (prior to the direction given by Registrar of Civil Appeals for lodging skeleton submission) in which the Applicant expressed his fear of being harm and killed if returned to his home country and requested the court to reconsider his case.

17.  The Applicant lodged another skeleton submission (pursuant to the direction made by the Registrar on 31 August 2018) on 13 September 2018 in which he set out the following:

(1)   The Director and the Board made unfair decisions and erred in assessing the risk of harm to be low.

(2)   The Director and the Board cherry-picked and relied on COI which was unfavourable to him and ignored “the overwhelming evidence of violence towards minorities searching for unrealistic silver lining.” 

(3)   The decisions were biased and made in a formula approach without a fair assessment of the danger faced by him.

18.  We heard the appeal on 7 December 2018. 

Discussion

19.  In Re Moshsin Ali [2018] HKCA 549, the Court held that the decision of the Director is not susceptible to judicial review once an appeal to the Board (and/or petition to an adjudicator of the Non-refoulement Claims Petition Office, as the case may be) is pursued by a non-refoulement claimant.  Since the Applicant had already petitioned to the Board against the Director’s decisions, the Court of First Instance in considering the application for leave to apply for judicial review need not consider the Director’s decisions.

20.  The grounds of appeal and complaints mentioned in the skeleton submissions lodged on 20 August and 13 September 2018 had been put forward before the Judge and were duly rejected.  We agree with the Judge’s finding at [51] of the CALL-1 Form that the Director and the Adjudicator had considered the Applicant’s case carefully and applied the law correctly.  They had proper basis to make their findings, conclusions and decisions which were not Wednesbury unreasonable and made no errors of law nor if there was any procedural unfairness.  The decisions are not formulaic or biased.  They have discussed and decided all issues raised by the Applicant fairly and reasonably.

21.  Most importantly, in an appeal, this Court focuses on examining the correctness of the Judge’s refusal of leave in light of the grounds of appeal advanced by the Applicant in the notice of appeal, see: Re Shrestha Santosh Kumar [2018] HKCA.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  We see no merit in the grounds of appeal as they do not identify any error in the Judge’s decision and thus the appeal plainly has no prospect of success.   

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