RE SHAHZAD KHURRAM

CACV 484/2020

[2021] HKCA 785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 484 OF 2020

(ON APPEAL FROM HCAL 2003 OF 2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Shahzad Khurram, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 15 June 2020 (“Judge’s Decision”) refusing him leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 24 August 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 15 March 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Pakistan now aged about 35, is a fear of being harmed or even killed by a member of the Pakistan Muslim League (Nawaz) (“PML(N)”) named Razaq Bhatti (“Bhatti”) and other PML(N) workers from his home village because he was a member of, and refused to quit, the Pakistan Tehreek-e-Insaf (“PTI”), a rival political party. 

3.  The circumstances giving rise to such fear have been set out in detail in paragraph 7 of the Director’s Decision and in gist in paragraph 18 of the Board’s Decision and in [2] to [6] of the Judge’s Decision embodied in the Form CALL-1 dated 15 June 2020, [2020] HKCFI 1128 (“Form CALL-1”).

4.  Briefly:

(1)  In the applicant’s village, there were more members/ supporters of the PML(N) than those of the PTI.

(2)  In around February 2014, the applicant became a PTI member.  As such, he put up PTI posters and canvassed votes for future elections.  Not only did he recruit new supporters for the PTI, he also persuaded some PML(N) supporters to convert to the PTI.

(3)  The applicant’s work for the PTI had turned him into a target of Bhatti, the area chairman of the PML(N).

(4)  In around April/May 2014, the applicant and his parents received threatening telephone calls, almost daily, demanding the applicant to stop advocating for the PTI, or else they would get killed.  The applicant believed that the callers, who did not identify themselves, were Bhatti and other PML(N) workers. However, no follow-up action was taken on their complaint to the local police and they continued to suffer countless telephone threats.

(5)  One night towards the end of 2014, there were gun shots outside the applicant’s house.  The applicant suspected they were fired by PML(N) supporters to warn him to quit the PTI.  Again, when he subsequently reported the incident to the police, they did not take the matter seriously.

(6)  One evening several days later, while the applicant was on his way home from work, he was intercepted by unknown men who demanded that he leave the PTI. When he refused, they beat him up.  The applicant he suspected the men to be PML(N) supporters.

(7)  Then, in February 2015, he was again attacked by the same group of persons who intimidated the applicant and the PTI colleague who was with him with pistols.  These people beat them up.  The applicant was nearly beaten unconscious.

(8)  The applicant made reports of the 2 beatings to the local police but again to no avail.

(9)  As his parents were concerned for his safety, in late February 2015, they arranged for the applicant to move to Karachi where he stayed at a friend’s place without further incidents until he left Pakistan in April 2015.

(10)  After the applicant had arrived in Hong Kong, in around September 2016, his cousin was stripped bare and beaten up heavily because of his participation in the PTI.  The assailants made a video of this beating, which was then sent to the applicant via WhatsApp.

(11)  In around December 2016, a friend of the applicant was shot dead by, it was believed, PML(N) people after participating in a PTI rally the day before.

(12)  4 days before the applicant’s screening interview, he received a threatening phone call which warned him to tell his brother to be careful.

(13)  On 27 February 2017, the applicant was told by his family that his brother had been shot in the arm by 2 people from the rival party.

Illegal entry into Hong Kong and lodgment of NRF Claim

5.  On 21 April 2015, the applicant departed for Guangzhou, China.  He sneaked into Hong Kong on 16 December 2015 and was arrested by the police on 18 April 2016.  He raised the NRF Claim by written representations dated 10 and 24 May 2016.  

Director’s Decision

6.  In processing the NRF Claim, the Director took into account the information provided by the applicant in his Non-refoulement Claim Form dated 10 January 2017 and at the screening interview on 28 February 2017.  The applicant then had legal advice and representation from the Duty Lawyer Service (“DLS”).

7.  The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  First, there are no substantial grounds for believing that there will be any real and substantial risk of the applicant being harmed or killed by Bhatti or other PML(N) workers from the applicant’s village upon his return to Pakistan.  Apart from the applicant’s bare assertions, there is no concrete or objective evidence to prove the alleged phone threats, shooting, beatings or inaction of the police.  Nor is there any proof that the alleged police inaction was because of PML(N) influence or that it represented the attitude of the police in Pakistan as a whole.  It is also purely the applicant’s speculation that Bhatti was involved in any of the incidents he raised.  In any event, the past ill-treatment did not attain a minimum level of severity.

(2)  Second, the availability of state protection would further lower or even negate the risk (if any).  There is objective country of origin information (COI) showing that reforms and improvements have been and are on-going in Pakistan, with objective indications that the Pakistani government has taken practical steps to monitor the conduct, and improve the effectiveness, of the Pakistani police, punish incompetent police officers and arrest PML(N) politicians if they breach the law.  There are authorities or avenues to deal with the applicant’s problems in Pakistan.

(3)  Third, the perceived risk was localised to the Tehsil and Chakwai District and can be further negated or reduced by the applicant by moving to another district of Pakistan.  Reasonable internal relocation alternatives are available in such a vast and populous country as Pakistan.  It is not unduly harsh for the applicant who is young, able-bodied and well educated to relocate.

Appeals to Board and Board’s Decisions

8.  The applicant appealed against the Director’s Decision to the Board.

9.  The Board conducted a rehearing of the NRF Claim on 23 May 2018, at which the applicant was represented by a lawyer assigned by the DLS and testified before, and answered questions by, the Board and the senior government counsel appearing for the Director through an interpreter.

10.  The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection as it found the applicant’s case to be built on mere speculations.  More specifically, it was a figment of the applicant’s imagination that the unidentified callers who made the threatening phone calls were Bhatti and other PML(N) supporters.  Likewise, it was just his speculation that the shooting outside his house was ordered by Bhatti.  He did not know the people who twice beat him up but assumed that they were PML(N) workers.  It was a smear attack on the Pakistani police to say that they did not take any action.  He could not identify his attackers and speculated, without any basis, that they were PML(N) workers. 

11.  The Board further reached the same conclusions as the Director regarding the availability of state protection and reasonable internal relocation options.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2003/2018 on 21 September 2018, supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on grounds which the Judge summarised as follows in [11] of the Form CALL-1:

“(1) that the Director wrongly assessed his risk of harm from his enemy by relying on state protection when in fact state protection would not be available to the Applicant in Pakistan;

(2) that the Director and the Board wrongfully exercised their case management power by putting undue weight on the reported availability of state protection when the same COI also supported the Applicant’s case that state protection would not be available in Pakistan;

(3) that the Director adopted an uninformed approach in wrongly rejecting his claim;

(4) that the adjudicator failed to properly address his grounds when dealing with his appeal and instead came up with the same assessment on more or less a template basis;

(5) that the Board failed to apply high standards of fairness or to give adequate reasons for its decision;

(6) that the Board’s decision was unfair, unreasonable and illogical when it failed to give credence to any of the evidence and documents provided by the Applicant in support of his claim;

(7) that it was irrational, unreasonable and unfair for the Board to reject the credibility of the Applicant’s case as it cannot be accepted that the Board could have no real doubt that his claim in Pakistan did not in fact occur;

(8) that the Board’s decision was illogical unreasonable and unfair to reject his claim because it found that “Razzaq was only a grain wholesaler … did not mean that he could be well-connected to the government officials and police officers in area” which cannot be accepted as sufficient reason to reject his claim without taking into account other relevant facts such as the torture of his cousin, his friend’s death and the shooting of his brother;

(9) that it was illogical unreasonable and unfair for the Board to reject his claim because he personally experienced only one incident and did not see who had fired the shot, and to find that “it was a smear attack on the police to say that the Police did not take action in respect of all the incidents because he could not identify the attackers and speculated they were PML-N workers. There was no way in which the police could proceed to investigate when he merely said they were PML-N workers”, and that the Board failed to give any proper explanation and ignore all the facts;

(10) that the Director failed to explain how in its balancing exercise that it relied on various COI in assessing the Applicant’s allegations with regard to state protection; and

(11) that the Director had merely adopted a formulaic and biased approach in its reliance of COI to assess his claim when the same piece of COI was used to both support his assertion of the overall corruption in Pakistan including ineffectiveness of its police and corruption when the same information was used to show that reforms have been on-going in respect of the police in Pakistan in recent years.”

13.     After hearing the application in open court at which the applicant was present and was assisted by an interpreter, the Judge refused leave.  His reasons can be found in [12] to [16] of the Form CALL-1:

“12. These are however mostly just 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 the decision, or in what way was the decision unfair or unreasonable or that the adjudicator fail to apply high standard of fairness or to take into account of relevant COI or being selective or improperly rely on irrelevant COI to assess police corruption and efficiency in Pakistan. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any reliable or objective evidence that the adjudicator was entitled not to accept the Applicant’s hearsay information of alleged attacks on his brother or his friends by PML(N) supporters after his departure from Pakistan or to conclude that such incidents even if true were not related to his claim. As such and in the premises I do not find any of these grounds of the Applicant reasonably arguable for his intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. 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, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16. 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 accordingly refuse his leave application.”

Appeal to Court of Appeal - grounds of appeal and submission

14.  The notice of appeal filed herein on 17 December 2019 stated (sic):

“The High Court Judge refused my leave application. But total judgment he could not show any cause of refusal from his won. The gist of his judgment is he did not find any error of law, actually he did not read Adjudicator or director Decision.

It is very short sentence that I did not find any error but to find their error he did not try at all.”

15.  By his written submission dated 22 April 2021, after reiterating the alleged events underlying the NRF Claim, the applicant asserted (sic):

“My story is practically true. I request you to grant my leave.”

16.  The applicant appeared in person at the hearing of the appeal on 24 May 2021.  He was provided with an Urdu interpreter.  He had nothing to add to his notice of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

17.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[5]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

19.  The applicant has not identified any basis whatsoever upon which he suggests that the Judge had not read the decisions by the Director or the Board or that he had not made any attempt to find any error of law in the Board’s Decision.  And we find such suggestions to be groundless.  They should not have been made.

20.  The applicant has simply failed to state in the notice of appeal or the written submission in what ways (if any) the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.

21.  Although the applicant had seemingly raised 11 grounds for seeking leave for judicial review of the Board’s Decision, as the Judge noted in [12] of the Form CALL-1, they were just broad and vague assertions without any particulars.  The court cannot act on such bare allegations.  In the circumstances, the Judge’s conclusion that the applicant had failed to show any error of law, procedural unfairness or irrationality on the part of the Board cannot be faulted.  The Judge had no alternative but to refuse leave for judicial review.

Disposition

22.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.