RE AASHIQ KHAN

CACV 195/2018

[2018] HKCA 748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 195 OF 2018

(ON APPEAL FROM HCAL NO. 792 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 Josiah Lam (“the Judge”) given on 21 May 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 24 May 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 13 October 2017 dismissing his appeal against the Director’s decision. The applicant consents to the appeal being heard by two judges.

2.  The applicant is a Pakistani national.  On 6 February 2014, the applicant surrendered to the Immigration Department and claimed to have entered Hong Kong illegally from Shenzhen on 10 January 2014.

3.  On 7 April 2014, the applicant lodged a non-refoulement claim based on his fear of being harmed or killed by a person called Rashid Khan (“Rashid”) and other supporters of Pakistan Muslim League (Nawaz) (“PML(N)”) due to his involvement with a rival party, the Pakistan People’s Party (“PPP”), and his refusal to join PML(N). 

4.  The basis of the applicant’s claim had been set out in details in [6] and [7] of the Director’s decision and [9] and [10] of the Board’s decision and summarized by the Judge in [2] to [9] of the Form CALL-1 dated 21 May 2018, [2018] HKCFI 1066 as follows:

“2.   The Applicant claimed that he belonged to the Pakistan People’s Party (“PPP”). He would be harmed or killed by Rashid Khan (“Rashid”) or other supporters of the Pakistan Muslim League (Nawaz) (“PML(N)”) if he was refouled to Pakistan.

3.  The Applicant said he supported the PPP. Rashid was living in the neighbouring village. In mid-March 2012, Rashid called the Applicant to persuade him to join PML(N). The Applicant refused. The next day, Rashid called the Applicant again and said angrily that the Applicant would get into trouble if he did not agree to join PML(N).

4.  In April 2012, Rashid and others stopped the Applicant on the road. Rashid threatened to kill the Applicant if he still refused to join PML(N). The Applicant was assaulted. He later reported the matter to the police. However, the police ignored his complaint and gave no reasons. The Applicant went to a member of the National Assembly for help but he did not get any assistance either.

5.  A few days later, Rashid called the Applicant to threaten him again. The Applicant was in absolute fear. He went to the same police station to report the matter but the police again refused to accept his complaint. The police said Rashid was a powerful man due to his connection with PML(N). The police even asked the Applicant to listen to Rashid. They just told the Applicant to leave the police station.

6.  In the circumstances, the Applicant left his village. He went to live in another place called Rawalpindi from April/May 2012 to July 2013. The stay there was uneventful but the Applicant noticed some people were constantly following him. He felt it was no longer safe to stay in Pakistan. He left the country for China and stayed there for some weeks. The Applicant did not raise any non-refoulement claim in China. When he felt safe to return to Pakistan, he went back to Karachi to stay with a friend called Shabir. There he stayed for 8 months until someone threatened Shabir not to house him. The Applicant then returned home briefly before he moved to Karachi again to stay in a guesthouse. Shabir told the Applicant that somebody was enquiring his whereabouts. The Applicant felt it was not safe to remain in Pakistan, so he left again for China on 3 December 2013. He finally sneaked into Hong Kong by boat from China on 10 January 2014.

7.  In Hong Kong, the Applicant heard from his family in Pakistan that Rashid still harassed them and threatened he would not spare the Applicant.

8.  The Applicant had no confidence in the Pakistan police. He thought the police would not take action against Rashid because Rashid was a member of the ruling party PML(N).

9.  The Applicant considered internal relocation not viable. He said PML(N) members had an extensive network in the country.”   

5.  By a Notice of Decision dated 24 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].    

6.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 4 October 2017.  The applicant adopted the information in the hearing bundle, which included information in his non-refoulement claim form (“NCF”), his interview with the immigration officer and in the appeal.  He also answered questions on his claim put to him by the Board.    

7.  By its decision dated 13 October 2017, the Board dismissed the appeal.  For the reasons given in [24] to [30] of its decision, the Board found the applicant not credible and rejected his claim, including his case that he was a PPP supporter, and that he had been threatened, assaulted and pursued by Rashid and his men.  The Board did not accept the applicant would be at risk of harm from Rashid or supporters of the PML(N), and concluded there were no substantial grounds for believing that he would be subjected to torture risk, BOR 3 risk, BOR 2 risk or persecution risk if refouled to Pakistan. 

8.  The applicant filed a Form 86 and a supporting affirmation on 20 October 2017 to seek leave to apply for judicial review against the decisions of the Director and the Board.  In his affirmation, the applicant raised four grounds in support of the relief claimed as follows:

(1)   Lack of legal representation. 

(2)   Lack of language assistance. 

(3)   Wrongful exercise of case management power. 

(4)   Lack of fair hearing.    

9.  At the applicant’s request, an oral hearing was held on 3 May 2018 to hear the leave application.  The Judge refused to grant leave and gave his reasons in [30] to [38] of the Form CALL-1 as follows:

“Ground (a): Lack of legal representation

30. The Applicant complained that he had not been provided with sufficient legal assistance. He had legal assistance from the Duty Lawyer Service up to the Director's decision dated 24 May 2017 but not thereafter.

31. 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] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process. There is no substance in Ground (a).

Ground (b): Lack of language assistance

32. The Applicant complained that he had not been given sufficient interpretation/translation assistance.

33. In court, the Applicant said he only knew a little English but he had a friend to prepare Form 86 and the affirmation for him for judicial review. They were quite well-presented. Apparently, the Applicant could find someone to provide him with interpretation/translation assistance. I am sure it was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents. Ground (b) fails.

Ground (c): Wrongful exercise of case management power

34. The Applicant complained that the Adjudicator had no reason to find him incredible.

35. In paragraphs 23-34 of his decision dated 13 October 2017, the Adjudicator succinctly and rightly pointed out the inconsistent and implausible features of the Applicant’s case. He had sound basis to find the Applicant incredible. His findings were not Wednesbury unreasonable. Ground (c) fails.

Ground (d): Lack of fair hearing

36. The Applicant criticised the Director for not attending the appeal hearing before the Board on 4 October 2017. I cannot see how the Applicant’s claim was prejudiced by the fact that the Director was excused from the appeal hearing before the Board. Ground (d) also fails.

37. In my judgement, the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s claim carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

38. 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.”

10.  In the Notice of Appeal filed on 31 May 2018, the applicant asked for a reconsideration of his case on the basis of unfairness and unreasonableness.  Specifically, he made the following points:

(1)   He disagreed to the Judge’s holding at [33] of the Form CALL-1 that he was able to seek assistance in interpretation or translation of documents.  The language assistance that he was referring to was not help provided on a personal basis, but the kind of assistance provided to him by the relevant authorities in the course of non-refoulement proceedings.   

(2)   The hearing bundle for the appeal hearing before the Board was not explained to him.

(3)   The Board’s decision and the Judge’s decision were not read to him.  He should not be expected to seek external help with interpretation, which not be accurate and complete.  

11.  The applicant’s written submission is a repetition of the points made in the Notice of Appeal.

12.  The applicant’s complaint on lack of language assistance in the application for leave to bring judicial review was directed at: (1) not being given a translation of his NCF such that he could not find out whether his claim was accurately set out; and (2) not having language assistance in lodging his appeal to the Board against the Director’s decision (see [8] and [9] of the applicant’s affirmation). 

13.  It is firstly not open to the applicant to expand on the scope of his complaint in this appeal from the Judge’s decision.  The applicant is not at liberty to raise new complaints about not being explained the hearing bundle for the appeal hearing before the Board, the Board’s decision and the Judge’s decision.

14.  Secondly, there was no dispute that the applicant was assisted by lawyer and interpreter in the compilation of his NCF and in the interview with the immigration officer.  The NCF and his interview record would have been read over to him and signed by him before they were taken into consideration when assessing his claim.  In the circumstances, the applicant’s complaint that he could not find out whether his claim was properly presented because he was not provided with a translation of his NCF has no substance.  

15.  Thirdly, when the applicant appeared before the Board, he was aided by a language interpreter.  He did not raise with Board his concern about not having a translation and therefore could not verify if the NCF had accurately set out his claim.  Neither did he raise with the Board that he did not know the content of the hearing bundle.  To the contrary, he adopted as his evidence the information in the hearing bundle, which had included his NCF.  It would also appear from the Board’s decision that the hearing bundle consisted of the materials submitted by the applicant in relation to his claim and appeal.  Further, given he had the assistance of an interpreter, he should be able to fully articulate his case before the Board.  The applicant’s complaint of lack of language assistance is therefore not supported by the objective facts before us.     

16.  None of the matters advanced by the applicant points to any error in the Judge’s reasons and decision.  The applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.