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CACV 578/2020
[2021] HKCA 789
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 578 OF 2020
(ON APPEAL FROM HCAL 494 OF 2018)
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Before: Hon Barma JA and Lisa Wong J in Court
Date of Hearing: 24 May 2021
Date of Judgment: 4 June 2021
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J U D G M E N T
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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 Asjad BAIG, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 23 July 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 13 March 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 10 May 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 40, is a fear of being harmed or even killed over a land dispute and a shooting incident resulting from such dispute.
3. The circumstances giving rise to such fear have been set out in detail in paragraphs 5, 7 and 8 of the Director’s Decision and paragraphs 16 to 37 of the Board’s Decision and in gist in [2] to [9] of the Form CALL-1 dated 23 July 2020, [2020] HKCFI 1637 (“Form CALL-1”).
4. Briefly:
(1) The applicant farmed on land in his home village that he inherited from his father (“Land”).
(2) On the day after the election in 2007, his cousin Shahzad was shot in the head by his friend Naeem after an argument over the votes. The applicant confronted Naeem over the phone while he was with Shahzad at the hospital. Naeem warned the applicant to be careful.
(3) The applicant later fled to Karachi after seeing Naeem and 2 bodyguards, all armed with gun/pistol, approach the Land from a distance. The applicant believed that they were going to kill him.
(4) His parents reported the incident to the police but to no avail as Naeem did not actually do anything to the applicant.
(5) After an uneventful 2-week stay in Karachi, the applicant came to Hong Kong in February 2007. After the failure of his application to the United Nations High Commissioner for Refugees Hong Kong Sub-office for refugee status and subsequent claim (“Torture Claim”) under the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment[1], on 6 November 2012, the applicant was deported back to Pakistan.
(6) In early 2013, the applicant asked the village head to help him reach a settlement with Naeem. A “mediation” meeting at the village head’s house was, however, unsuccessful.
(7) Then, in May 2013, Naeem approached, and told, the applicant that if he wanted to resolve their dispute, he should sell the Land to Kafyat and Awais from the neighbouring village. But the price offered was just one-fifth of the Land’s market value. The applicant rejected the offer. Naeem threatened that Kafyat and Awais would take the Land by force if he would not sell it.
(8) Later in the same month, the applicant went to work in Lahore and Sialkot. In June 2013, he heard that some men had entered, and started to erect a structure on, the Land. He called Naeem who admitted that Kafyat and Awais had taken over the Land by force. The applicant rushed back to his home village. Together with his cousin and 2 friends, he went to the Land to confront the 10 to 15 men there who were guards of Kafyat and Awais. The confrontation turned violent when some of Kafyat and Awais’ men started firing their guns. The applicant’s cousin and friends returned fire with their revolvers. Two of Kafyat and Awais’ men were shot. The applicant later heard that one of them died from his injuries.
(9) In August 2013, while the applicant was working in Sialkot and Lahore, a fire broke out at his house and killed his wife and stepson. Despite the police’s finding of natural cause and without investigation the matter himself, the applicant believed Naeem set the fire.
(10) Shortly afterwards, the applicant learnt from his colleagues that the police were looking for him for the murder of Kafyat and Awais’ man. The applicant began to move from place to place in Pakistan until March/April 2014 when he fled to Macau with his Pakistani passport (which he had obtained at the end of 2013).
(11) He hid in Macau for about a month before returning to Pakistan on the expiry of his visa.
(12) On 7 December 2014, he left for Guangzhou, China with his own passport.
Illegal entry into Hong Kong and lodgment of NRF Claim
5. The applicant entered Hong Kong illegally from Hoifung, China after staying there for about a year. He was arrested by the police on 2 January 2016. He raised the NRF Claim by written significations dated 25 January 2016, 16 November 2016 and 15 February 2017[2].
Director’s Decision
6. In processing the NRF Claim, the Director had taken into account the materials generated by the Torture Claim, i.e. information that the applicant provided in his questionnaire dated 17 May 2012 and at the screening interviews on 18 and 31 July 2012. Further, a supplementary claim form dated 11 April 2017 was submitted and a third screening interview was conducted on 5 May 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[3], persecution risk[4], “BOR 2” risk[5] and “BOR 3” risk[6].
(1) First, the low intensity and frequency of past ill-treatment from Naeem, Kafyat, Awais and their people indicates a low future risk of harm from them upon the applicant’s return to Pakistan. Apart from the applicant’s suspicion, there is no evidence to prove that Naeem was responsible for the fire that killed the applicant’s wife and stepson.
(2) As for being wanted by the Pakistani police for the murder of Kafyat and Awais’ man, it is based entirely on hearsay from his colleagues. The applicant was never intercepted or located by the police. In 2013, he managed to obtain a passport without any difficulty. He also twice left Pakistan, once for Macau and once for Guangzhou, with his Pakistani passport without any hindrance, which would not have been possible if he had really been wanted for murder.
(3) Second, the availability of state protection would further lower or even negate the perceived risk (if any). There is objective country of origin information (COI) showing that the Pakistani government has taken practical steps to improve the effectiveness of the Pakistani police and punish officials and police officers guilty of misconduct. There are also avenues for people to seek justice in Pakistan.
(4) Third, the perceived risk (if any) can be further negated or reduced by the availability of reasonable internal relocation alternatives in Pakistan.
Appeal to Board and Board’s Decision
8. The applicant appealed against the Director’s Decision to the Board on 19 May 2017.
9. After a rehearing on 19 January 2018, at which the applicant testified before, and answered questions by, the Board through an interpreter, the Board dismissed the appeal on all the said grounds for non-refoulement protection on 13 March 2018.
10. More particularly:
(1) In respect of torture risk, there are no substantial grounds for believing that the applicant would be subjected to torture in Pakistan. The treatment that he received before he left Pakistan does not come within the statutory meaning of “torture”. There is no proof that Naeem, Kafyat or Awais had done anything to harm the applicant. There is no evidence the fire that killed the applicant’s wife and stepson had anything to do with Naeem. Kafyat and Awais had already taken the Land by force and it seems that the applicant could do nothing about it. As for the murder of Kafyat and Awais’ man, it was lawful and reasonable for the police to look for the applicant and his friends in order to investigate into the case.
(2) In respect of “BOR 3” risk, the ill-treatment, if any, that the applicant had received in the past did not attain a minimum level of severity.
(3) In respect of “BOR 2” risk, there is nothing in the applicant’s case that suggests any risk to his right to life.
(4) In respect of persecution risk, the NRF Claim was based purely on a personal grudge between the applicant and Naeem. The perceived ill-treatment was not persecution, nor was it inflicted for a Convention reason.
(5) Lastly, it would be reasonable for the applicant to relocate to another part of Pakistan to avoid Naeem, Kafyat, Awais and their people.
Application for leave for judicial review and Judge’s Decision
11. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 494/2018 on 20 March 2018, the applicant sought leave to apply for judicial review of the Board’s Decision without putting any proposed ground for judicial review, properly so called. He merely reiterated in the affirmation filed on the same date the worry that his enemy would kill him if he should go back to Pakistan.
12. As the applicant did not ask for an oral hearing, the Judge considered the application on the papers before him. He refused leave for the reasons stated in [12] to [15] of the Form CALL-1:
“12. On 27 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would be in danger if refouled to Pakistan without putting forward any valid or proper ground for his intended challenge, nor did he request for any oral hearing for his application. As such and in the absence of any reasonably arguable ground showing any error of law or procedural unfairness in the process before the Board or in its decision by the Applicant, I do not find any basis or merit in 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. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim from Naeem or his friends 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.”
Appeal to Court of Appeal - grounds of appeal and submission
13. By a notice of appeal filed herein on 27 October 2020, the applicant appealed against the Judge’s Decision on grounds “[t]o be provided at a later [d]ate”.
14. By his written submission dated 24 March 2021, the applicant contended:
(1) that the Director failed to consider the concept of “extended acquiescence” (“Ground 1”);
(2) that the Board had unlawfully fettered its discretion by refusing his appeal on the ground that it did not satisfy the requirements (“Ground 2”);
(3) that the Board’s Decision to refuse his appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness (“Ground 3”);
(4) that the Board failed to apply the high standards of fairness owed to a self-represented litigant (“Ground 4”);
(5) that the hearing bundle in English was provided to him without giving him sufficient time to prepare for his appeal before the Board (“Ground 5”);
(6) that the Board made the groundless speculation that it would be safe for him to return to Pakistan as a result of relying on non-officially recognised or hearsay news and outdated cases (“Ground 6”);
(7) that the judge did not allow him to talk about the Board but only asked him about his name and address (“Ground 7”); and
(8) that he lacked knowledge about judicial review but was refused legal aid (“Ground 8”).
15. 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
16. 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
17. 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[7]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
Ground 1
18. Ground 1 targets the Director’s Decision. Applying Moshsin Ali [2018] HKCA 549, the Director’s Decision was superseded by the Board’s Decision which represented the final decision on the NRF Claim at the end of its processing. It was not susceptible to judicial review once an appeal to the Board had been pursued by the applicant. It follows that the applicant cannot appeal against the Director’s Decision to the Court of Appeal either.
Grounds 2 to 6
19. These 5 grounds target the Board’s Decision. First, as explained in [17], in hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is the judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim.
20. Second, the complaints against the Board under these grounds were not raised by the applicant before the Judge in his application for leave for judicial review of the Board’s Decision.
21. Third, such complaints are couched in terms that are so broad and vague and are so lacking in particulars that prevent the court from properly considering and assessing them.
Ground 7
22. We are puzzled by the allegation that the Judge prohibited the applicant to talk about the Board. As noted in [12] above, the Judge did not conduct, because the applicant did not ask for, an oral hearing of the application for leave for judicial review of the Board’s Decision.
Ground 8
23. It does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom. Representation at the later screening and legal stages is merit-based. See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.
24. In this case, the applicant did already have the benefit of legal representation from the DLS in presenting his case to the Director. Other than a general complaint, he has not pointed out in what ways he was prejudiced before the Board or the Judge due to his not being provided with legal aid. And we can see none, particularly given the purely factual nature of the NRF Claim.
25. In short, the applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the findings by the Board. That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed. Nor did he in the notice of appeal or the written or oral submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
Disposition
26. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
(Aarif Barma)
Justice of Appeal |
(Lisa Wong)
Judge of the
Court of First Instance |
The applicant, unrepresented, appeared in person
[1] While the Torture Claim was pending, on 20 May 2011, the applicant was convicted of the offences of taking employment while being a person who remains in Hong Kong without the Director’s authority after having landed in Hong Kong unlawfully and of using an identity card relating to another person and was sentenced to a total of 20 months’ imprisonment.
[2] In the meantime, on 4 February 2016, the applicant was convicted of the offences of remaining in Hong Kong without the Director’s authority after having landed in Hong Kong unlawfully and of breach of deportation order and was sentenced to a total of 18 months’ imprisonment.
[3] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[4] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[5] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[6] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[7] [1954] 1 WLR 1489.
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