RE ZAFAR MUAZAM

CACV 2/2018

[2018] HKCA 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 2 OF 2018

(ON APPEAL FROM HCAL NO 275 of 2017)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  This is the applicant’s appeal against the decision of M Poon J (“the Judge”) given on 5 December 2017 refusing him leave to apply for judicial review. The applicant’s intended judicial review is against: (1) the decision of the Director of Immigration (“the Director”) dated 23 March 2015 and his supplemental decision dated 24 October 2016 rejecting the applicant’s non-refoulement claim; and (2) the determination of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 28 April 2017 dismissing the applicant’s appeal against the Director’s decisions.

2.  The applicant is a Pakistani national.  He went from Pakistan to mainland China through Thailand in June 2006, and eventually entered Hong Kong illegally on 30 June 2006.  He was arrested by the police on 12 March 2008 for remaining in Hong Kong illegally.  On 29 August 2008, he made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”).  Upon the commencement of the unified screening mechanism on 3 March 2014, his claim was taken to be a non-refoulement claim and assessed under the new mechanism.

3.  The applicant’s claim is based on his fear that if he were to be returned to Pakistan, he would be: (1) harmed or killed by a Mr Sikandar (“Sikandar”) because his family did not vote for him in the 2005 election; and/or (2) arrested by the police because Sikandar had wrongly accused him of killing his son.

4.  The Director had assessed the applicant’s claim with regard to torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4]. 

5.  In the first decision of 23 March 2015, the Director assessed the level of risk of harm to the applicant from Sikandar and/or the police in Pakistan upon his return to be low, having regard to the circumstances of the case, the availability of state protection and the possibility of internal relocation in Pakistan.  The Director did not accept: (1) there was a genuine and substantial risk of the applicant being subjected to ill-treatment by Sikandar of the kind stipulated under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”); (2) the ill-treatment feared by the applicant came within the definition of “persecution” envisaged by the 1951 Convention relating to the Status of Refugees, or that the applicant’s fear of ill-treatment was well founded; and (iii) there were substantial grounds for believing that the applicant would be subject to torture, including being killed by Sikandar, within the meaning of “torture” under section 37U(1) of the Immigration Ordinance.  The Director therefore rejected the applicant’s non-refoulement claim.

6.  By letter dated 13 September 2016, the Director invited the applicant to provide additional facts for further assessment under BOR 2 risk.  When the applicant did not respond by the deadline, the Director proceeded to make a further assessment under BOR 2 risk.  By his supplemental decision dated 24 October 2016, the Director considered that the applicant had failed to establish a personal and real risk of violation of the rights under HKBOR, and decided that a case of BOR 2 risk had not been made out.

7.  The applicant appealed to the Board against the Director’s two decisions.  An oral hearing was held on 7 November 2016.  By a decision dated 28 April 2017, the appeal was dismissed.  The adjudicator found the applicant’s evidence not reliable and that he failed to make out a case that he needed non-refoulement protection.  He noted the availability of state protection in Pakistan, and the absence of evidence that the applicant had been tortured within the meaning of Section 37U(1) of the Immigration Ordinance or subject to ill-treatment of the kind contemplated by Article 3 of HKBOR.  He considered there was no real risk of torture to the applicant upon his return to Pakistan, and that it was unlikely that the applicant would face a genuine and substantial risk of being subject to ill-treatment.  The adjudicator also considered it was not a case of persecution risk or BOR 2 risk.  He further accepted that internal relocation was possible and it would not be unduly harsh for the applicant to relocate to places away from his home village.

8.  The applicant filed his Form 86 on 8 June 2017.  He set out the grounds for his application in the supporting affirmation.  They are: (1) He was not given legal representation after the Director gave his decision of 23 March 2015, and this violated the principle of high standard of fairness; and (2) He was not provided with the necessary language assistance throughout the process, including the appeal to the Board.

9.  Pursuant to the applicant’s request made in his supporting affirmation, an oral hearing was held on 5 December 2017. The applicant was absent at the hearing.  The Judge dealt with the leave application in his absence.   The Judge refused to give leave to apply for judicial review as she considered the intended judicial review was not reasonably arguable and had no realistic prospect of success.  Her reasons are that[5]:

“7. Whilst the applicant complained about the lack of legal representation after the Director’s Decision, he attended and indeed participated in the hearing before the Adjudicator. It is clear from the Form 86 and the Affirmation filed for the purpose of this leave application that he must have access to and was able to seek the necessary advice and assistance that he required. There is no reason why he could not have had such advice if he so sought after his claim was dismissed by the Director and during his appeal to the Board. The BOR 2 claim, having been decided by the Director in the absence of further representation by him, had been considered again in the hearing before the Board. The applicant’s case had been thoroughly canvassed and assessed by the reference to the applicable laws and principles.

8. I do not find that that the lack of legal or language assistance during the appeal process has in any way jeopardized the applicant’s rights.  In any event, he was not entitled to free legal representation as of right after his claim was dismissed by the Director.  There was no procedural irregularity, nor was there any procedure which failed to meet the high standards of fairness.”

10.  The applicant’s ground of appeal as appeared by his notice of appeal filed on 2 January 2018 is that “I did not receive any letter from High Court for hearing.  That why I’m absent [sic].”

11.  By his letter dated 5 January 2018, the applicant did not agree to the disposal of the appeal on paper, and requested that the appeal be heard by three judges. 

12.  Despite directions from the Registrar of Civil Appeals, the applicant has not lodged any written submission in support of his appeal.

13.  At the hearing of his appeal on 21 March 2018, the applicant handed up six pages of documents consisting of copies of: (1) some pages in the passport of a Pakistani national by the name of Zafar Muzamal showing the holder’s particulars, his departure from O.R. Tambo International Airport in South Africa on 9 July 2017 and entry into Pakistan on 10 July 2017; (2) an electronic air ticket for Zafar Muzamal for a trip departing on 9 July 2017 from Durban, South Africa to Lahore, Pakistan via Johannesburg and Dubai, and a return trip departing on 9 April 2018; (3) an air ticket for Zafar Muzamal for a trip departing on 25 February 2018 from Lahore to Johannesburg via Dubai; and (4) a one-page document bearing the number 0334-4032607, and the chop of Karianwala Police Station, Gujrat District together with a date 15.09.17.

14.  The applicant explained that Zafar Muzamal is his brother, and he returned from South Africa to their home last year with a view to settle the dispute with Sikandar.  That, however, was unsuccessful, and one night some unknown people fired gunshot at their house and also threatened to kill him.  So his brother shortened the stay and returned to South Africa.  A report was made to the police and document (4) was the report.  As the document is not in English and is not accompanied by a translation, we asked the interpreter present in court to interpret the content to us.  The interpreter informed us that this was a report to police by Zafar Muzamal, the gist of which is that in the midnight between 14 and 15 September 2017, some unknown people fired gunshot into the main gate of his home, and went away on motor cycle.  The incident was witnessed by two people.  Then two days later, his cousin received a call on his mobile.  The caller threatened to kill Zafar Muzamal and also the applicant if he were to return home. 

15.  The applicant asked us to admit these documents into evidence and to take them into account in determining his appeal.  As this Court had said in Hounkpedji Messanh v.Torture Claims Appeal Board CACV 164/2017, [2018] HKCA 152 at [14], while the Court recognizes the practical difficulties faced by a torture claimant in procuring relevant evidence, the rule in in Ladd v. Marshall [1954] EWCA Civ 1, 1 WLR 1489 limiting the circumstances under which new evidence can be admitted on appeal is still generally applicable in an appeal of this nature though the Court may relax it if there are exceptional circumstances warranting the same. 

16.  The three requirements in Ladd v. Marshall that a party seeking to adduce new evidence on appeal must satisfy are: (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible. We would additionally point out that any application to adduce new evidence should be properly made by way of summons and any explanation should be contained in affidavit.

17.  Notwithstanding that there was no proper application before the court, we would exceptionally consider his oral application.  Other than document (3), all the documents were in existence before the hearing before the Judge.  The applicant explained that he only obtained the documents the week before the hearing, and although he had previously asked for the documents to be faxed to him, the quality of the fax was poor.  The applicant had not, however, indicated when did he first learn of the incident and the existence of the report to police.  In our view, the explanation given by the applicant falls short of demonstrating that the documents could not have been obtained with reasonable diligence for use in the court below.  The first requirement in Ladd v. Marshall is not met.

18.  Further, taking the totality of the proposed new evidence to the highest, it only shows that the threat or risk of being harmed by some unknown people or possibly Sikandar has remained.  The proposed new evidence does not affect the Director and the Board’s assessment that the risk of harm is not high, having regard to the availability of state protection and the possibility of internal relocation. The fact that the applicant’s brother proceeded to make a report to the local police is supportive of the availability of state protection.  Importantly too, the proposed new evidence has no impact on the conclusion that it is not a case of torture or ill-treatment or violation of rights that amounts to a claim of torture risk, persecution risk, BOR 2 risk or BOR 3 risk.  This being the case, even if they were to be admitted, the proposed new evidence would not have affected the Judge’s holding that intended judicial review has no realistic prospect of success.  The second requirement in Ladd v. Marshall is therefore not met.

19.  As the applicant fails to satisfy the requirements of the law, and there are no exceptional circumstances justifying a departure from Ladd v. Marshall, we refuse his application to admit the documents as new evidence in this appeal.  We turn now to consider his grounds of appeal.

20.  Under O.53, r.3(3) of the Rules of the High Court, Cap.4A, a judge may deal with the application for leave to apply for judicial review without a hearing.  The mere absence of the applicant at the hearing of the leave application, without more, will not constitute a ground of appeal against the judge’s decision.  The applicant had the opportunity to advance his case in full details in his affirmation.  We do not accept his saying that because he was unaware of the hearing, he did not have the opportunity of providing to the Judge the documents that he had shown us.  Since he said he only obtained the documents the week before the hearing before this court, he would not have been able to show them to the Judge even if he attended at the hearing.  We do not accept there is any prejudice occasioned to the applicant by the Judge proceeding with the application in his absence.  The ground of appeal as advanced by the applicant in his Notice of Appeal has no merit.

21.  In any event, we agree with the Judge that the applicant fails to demonstrate that the grounds of his intended judicial review are reasonably arguable and the intended judicial review has realistic prospect of success: Po Fan Chan v. Winnie Cheung (2007) 10 HKCFAR 676. 

22.  This Court has held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v. Director of Immigration HCAL 51 of 2007 prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The applicant had the benefit of legal representation in presenting his case to the Director.  We do not find anything amiss arising from the non-availability of legal representation in the process before the Board.

23.  The applicant stated in his affirmation in support of the leave application that, due to his language limitation, he did not reply to the Director’s letter and did not provide additional facts or information for the Director’s further decision.  We note, however, at the hearing before the Board, the applicant had been specifically asked whether he had disclosed all information as to why he needed non-refoulement protection, and the applicant answered in the affirmative.  He did not make any complaint about being prevented from providing more information due to lack of language assistance.  We also share the Judge’s observation that the applicant’s Form 86 and affirmation to the court were written in English, which indicates that the applicant has access to and is able to seek the assistance he needs.  We further note that there is no interpretation clause in his affirmation which suggests that the applicant understands the English language.  In our view, the applicant has failed to demonstrate any procedural irregularity in the proceedings before the Director and the Board, or any arguable basis to challenge the fairness of the process. 

24.  We have also reviewed the materials placed before us.  We can discern no error of law in the decisions of the Director and the Board.  

25.  For these reasons, we agree with the Judge that the intended judicial review has no realistic prospect of success.  Accordingly, we dismiss the appeal.