RE AHMAD HASSAN

CACV 242/2018

[2018] HKCA 653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 242 OF 2018

(ON APPEAL FROM HCAL NO. 808 of 2017)

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J U D G M E N T

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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 Bruno Chan (“the Judge”) given on 15 June 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 16 June 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 17 October 2017 dismissing his appeal against the Director’s decision.

2.  By letter dated 3 July 2018, the applicant consents to the appeal being determined on paper without an oral hearing.        

3.  The applicant is a Pakistani national.  On 22 June 2009, he entered Hong Kong illegally.  He was arrested by the police on 23 October 2009. On 26 October 2009, he lodged a non-refoulement claim based on his fear of being harmed or killed by supporters of the Pakistan People’s Party (“PPP”) due to his involvement with a rival political party, Pakistan Muslim League (Q) (“PML(Q)”). 

4.  The basis of the applicant’s claim was set out in [19] to [25] of the Board’s decision and summarized by the Judge in [2] to [5] of the Form CALL-1 dated 15 June 2018, [2018] HKCFI 1312 as follows:

“2. The applicant was born and raised in Tehseel Pindi Bhatian, District Hafizabad, Punjab, Pakistan where his parents still live.  After leaving school he started supporting the political party Pakistan Muslim League (Q) (“PML(Q)”) and in 2007 assisted in the election campaign of his uncle who was a PML(Q) member and a candidate for the Union Council in Hajipura. The applicant did not hold any official position in PML(Q) but was active in organizing meetings and rallies for the party during which he had been involved in clashes with supporters of opposing party PPP.

3. One day in April 2008 after another clash between supporters of the two parties, PPP made a false claim to the police against the applicant and some other members of PML(Q) for breaching the peace and disturbing their meeting, of which the police did not do anything but just asked the applicant to resolve the dispute with the PPP people.  A few days later several members of PPP approached the applicant and asked him to leave PML(Q) and to join their party but the applicant refused.

4. Two months later police came to the applicant’s home and told him that PPP had made another complaint against him but the applicant was just told to resolve the dispute with the PPP people, but in June 2008 when the applicant was visiting friends in Gujrat, he was told by his family that the police had come again looking for him on another false claim filed by the PPP people, and was advised not to come home but to stay in Gujrat and to apply for his passport to leave Pakistan for his safety.

5. In March 2009 as the applicant felt it was no longer safe in Gujrat, he moved to Faisalabad to wait for his visa for China, and on 11 June 2009 he departed Pakistan for Bangkok and then to China, and from there he sneaked into Hong Kong where he subsequently lodged his non-refoulement claim for which he completed his Non-refoulement Claim Form on 3 October 2014 with legal representation from the Duty Lawyer Service.”   

5.  By a Notice of Decision dated 16 June 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 22 September 2017.  The applicant appeared in person and told the Board that all the evidence had been included in the written materials submitted to the Board.  He declined to answer the Board’s questions, despite being reminded that if he elected not to answer questions, the Board would have to decide his claim based on the available materials, which would unlikely be a favourable decision.  The Board also informed him that it was necessary to explore with him issues relating to the credibility of his claim that the PPP had considerable interest in him and would harm him for his refusal to join them, the changes in the political situation in Pakistan over the last 8 years since his departure, the availability of state protection and the possibility of internal relocation.  The applicant informed the Board that he was aware of those matters but had no comments to make. 

7.  By its decision dated 17 October 2017, the Board dismissed the appeal.  The Board noted that the onus was on the applicant to make out his case, and pointed out that the applicant’s unwillingness to answer questions meant that it did not have an opportunity to test the veracity of his claim.  On the basis of the available evidence, the Board was not satisfied that the applicant left Pakistan due to his fear of harm from the PPP members, that he was at any time sought by the PPP or any other political parties in Pakistan, or that a false case was raised against him by the PPP or the Pakistani police. The Board was not satisfied that the applicant would be at risk of harm from the PPP or any other political parties or from the police or any Pakistani authorities.  The Board therefore concluded that 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 on 25 October 2017 seeking leave to apply for judicial review against the decisions of the Director and the Board.  The Judge summarized his grounds in support of the relief claimed as follows:

(1)  The Director failed to take proper account and consideration of his claim; 

(2)  The Director failed to give proper or sufficient consideration of the country of origin information (“COI”) in assessing the effectiveness of state or police protection;

(3)  The Director failed to properly consider the serious problems of human rights infringement in Pakistan;

(4)  The Director failed to apply the high standard of fairness in the consideration of his claim; and

(5)  The Board failed to make proper or sufficient inquiry before making a determination of his claim, and further failed to give him sufficient opportunity to arrange relevant evidence to support his claim and appeal. 

9.  At the applicant’s request, an oral hearing was held on 23 April 2018 to hear the leave application.  The Judge refused to grant leave and gave his reasons in [11] to [14] of the Form CALL-1 as follows:

“11. [The grounds] are all very broad and vague assertions of the applicant containing just key words or phrases but without any particulars or specifics or elaborations as to exactly how the Director or the Board had erred in their use of COI in their assessments of the situations in Pakistan or in their consideration of his claim in their decisions.

12. Given the fact that his claim was rejected by the Board basically on his credibility, and that it is well established principle that the evaluation of evidence is essentially a matter for the Director and the Board who are entitled to make evaluation based on the facts and evidence available to them which the court will not usurp their role as primary decision makers, and the fact that the applicant had declined to give any evidence or even to answer any questions at his oral hearing before the Board despite being invited and advised by the adjudicator to do so, I fail to see any merits in any of his complaints or how in the circumstances these grounds of his can reasonably be argued for his intended challenge.

13. 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.

14. 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.”

10.  The Notice of Appeal filed on 19 June 2018 advanced the following grounds of appeal:

(1)  The Director and the Board had failed to appreciate or attach proper importance to the presence of state acquiescence in his case, and the court had failed to take such argument into consideration.

(2)  The Board failed to make sufficient enquiry before finalizing the determination.  The Board stated that he had failed to advance credible evidence to prove the material elements of his claim, but it should be noted that he is a torture claimant with no or limited options at his disposal with regard to adducing evidence.  The Board failed to give him sufficient opportunity to arrange relevant evidence to support his claim and his appeal.

(3)  The Director acted unfairly by attributing meaning to the COI to suit his preconceived conclusion.

11.  The applicant also filed an affirmation in which he reiterated that he was afraid of returning to his country because he feared he would be harmed or killed by the PPP supporters, and also gave a summary of his case.

12.  On the first and third ground of appeal, given that the Board was not satisfied that the applicant would be at risk of any harm from the PPP or the police or any Pakistani authorities, the concept of state acquiescence is not engaged and has no relevance.  For the same reason, it is not necessary, and the Board had not gone on, to consider COI.  It also follows that the propriety or otherwise of the Director’s approach to COI is irrelevant.

13.  As to the second ground of appeal, in light of the applicant’s election not to testify and to answer questions from the Board, despite having had explained to him the impact of this on the assessment of his claim, it is not open to him to judicially review the Board’s decision on the basis that it did not make sufficient enquiry into his claim and had not afforded him sufficient opportunity to adduce relevant supporting evidence.

14.  In the written submission dated 20 July 2018, the applicant put forward the following additional arguments:

(1)  He was refused legal aid and could not afford proper legal representation.  He had received limited and inadequate assistance with understanding the legal documents and the application/appeal process.  This amounted to procedural unfairness.

(2)  The court was wrong to consider there was nothing amiss in the refusal of his legal aid application.

(3)  The court held there was no merit in the complaint about lack of language assistance because all the documents submitted by him were in English.  However, he only had sparing and inconsistent help.

(4)  The Judge found there were no error of law in the Board’s decision and considered it had fully analysed the COI.  However, there was a failure to take a balanced view of the information in that it only drew inferences adverse to his claim and did not look for other relevant COI.  

15.  We note that the subject matter of the first to third arguments did not form part of the grounds for the application for leave to apply for judicial review, and had not been raised before the Judge. The applicant’s complaints that the Judge erred in rejecting these arguments are therefore misplaced.  It is further not open to him to introduce new grounds on appeal. 

16.  As to the fourth argument, it was a misreading of the Judge’s reasons.  The Judge did not hold that the Board had fully analysed the COI.  What the Judge held at [11] of the Form CALL-1 was that the applicant had not particularized or elaborated on how the Director or the Board had erred in their use of COI in their assessment of the situations in Pakistan or in their consideration of the applicant’s claim.  In any event, as pointed out above (at [12]), the Board did not have to, and in fact did not, consider COI in determining the applicant’s appeal.

17.  For the reasons set out above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.