Idrees Faisal and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 218/2018

[2018] HKCA 579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 218 OF 2018

(ON APPEAL FROM HCAL 554/2017)

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Before: Hon Lam VP, Yuen and Chu JJA in Court

Date of Hearing:  30 August 2018

Date of Judgment:  3 September 2018

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Woodcock on 7 June 2018 refusing leave to the applicants to apply for judicial review. The applicants are a family of six from Pakistan and the first five applicants arrived in Hong Kong on 20 June 2013 and were permitted to remain for seven days. The applicants did not leave Hong Kong and overstayed since 28 June 2013. On that same day they surrendered to the Immigration Department and later lodged non-refoulement protection claims. The 1^st and 2^nd applicants are married to each other and the other applicants are their children. The 6^th applicant is a son born in Hong Kong on 30 December 2014.

2.The Director decided against the claims on 4 December 2015.  The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s Decision”).  By a Further Decision dated 13 February 2017, the Director dismissed the claim based on BOR2 risk.

3.The applicants appealed to the Torture Claims Appeal Board.  The Board held a hearing on 30 March 2017.  The hearing was adjourned to 25 May 2017 to allow the brother of the 1^st applicant to testify for the applicants.  On 28 July 2017, the Board dismissed the appeals on all applicable grounds (including BOR2 risk) (“the Board’s Decision”).

4.The intended judicial review was in respect of the Director’s Decision and the Board’s Decision.  The Form 86 filed by the applicant on 24 August 2017 did not contain any ground for judicial review.

5.As held in Re Moshsin Ali [2018] HKCA 549, as the Board’s Decision had overtaken the Director’s Decision, the court would only focus on the Board’s Decision in an application for judicial review.

6.In the affirmation of the 1^st applicant dated 24 August 2017, he gave the following grounds for judicial review in respect of the Board’s Decision:

(1)  The Board failed to make sufficient enquiry before its decision;

(2)  The Board failed to take into account the seriousness of the threats received by the applicants as well as the contents and relevance of the medical reports submitted.

7.The relevant facts and background were set out by the judge at [3] to [12] of the CALL-1 Form in HCAL 554/2017, which is published as [2018] HKCFI 1163 on the judiciary Legal Reference website.  We shall not repeat the same in this judgment.

8.After reviewing the materials, the judge gave the following reasons in refusing leave at [19], [22] to [27] of the CALL-1 Form:

“ 19. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the submissions made on behalf of all the applicants. The adjudicator analysed the material, claim and evidence and then explained his findings. The applicants’ complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

…

22. The grounds against the adjudicator are that he failed to make sufficient enquiry before his decision, he failed to take into account the seriousness of the threats received by the applicants as well as the contents and relevance of the medical reports submitted.

23. Having read the adjudicator’s decision, I am satisfied that he took into account and considered the evidence and case of the applicants in its entirety. This means he did take into account the threats received by the applicants as well as the contents of any document submitted before he made any decision. In fact, he repeats the contents of the medical report. He evaluated the evidence and gave reasons for his findings; findings I will not disturb. There are no merits in the grounds against the adjudicator.

24. Despite my stance above, even if the Director could be or was a respondent, the Director found the claims did not amount to torture and/or CIDTP and/or persecution. The applicants did not rely on the extended concept of State acquiescence. The Director concluded that there was no evidence that State authorities or others acting in an official capacity knew or had reasonable ground to believe that any acts of torture or ill-treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons.

25. As for the criticism that the Director did not properly consider COI objectively before concluding there was state protection, I am satisfied from reading his decision that he considered relevant and up-to-date COI objectively before he made such a finding. I will not interfere with that finding. There are no merits in the grounds against the Director.

26. I do not find any ground that shows there was an error of law made by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. This applies also to the Director’s decision.

27. In my judgement, the applicants’ claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

9.In the notice of appeal of 7 June 2018 the applicants only stated one ground of appeal:

“ I would like to reject and review [the Board’s Decision]. They disregard our dangerous situation.”

10.In the skeleton argument dated 2 August 2018, the applicants submitted that:

(1)  A colleague of the 1^st applicant was killed before the hearing before the Board and that was not taken into account by the Board;

(2)  The father of the 1^st applicant was robbed at his home at gunpoint as reported in a Ummat newspaper on 20 July 2016;

(3)  The Board simply cited COI without understanding the cultural context in Pakistan.  The police in Pakistan is corrupt and unable to protect the applicants;

(4)  The Board should not have held that the account given by the brother of the 1^st applicant was irreconcilable with the account given by the 1^st applicant.  Some part of his evidence corroborated the 1^st applicant’s evidence.  The 1^st applicant has already provided medical certificates to prove that the physical assaults were true;

(5)  Internal relocation is impossible because the 1^st applicant continued to receive phone calls after he had moved to a different place;

(6)  The brother of the 2^nd applicant was beaten severely in order to extract information on the whereabouts of the applicants; and

(7)  The judge wrongly referred to his family as coming from India.

11.(1) and (6) appear to be new assertions which have not been advanced by the applicants earlier. The applicants did not put forward evidence supporting these assertions before the Board. 

12.In Re Tutul [2018] HKCA 552 and Re Litoun Mounsy [2018] HKCA 537, the courts reiterated following propositions applicable generally in an appeal of this nature:

(a)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(b)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(c)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489: see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(d)  Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(e)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

13.For present purposes, we only need to focus on (2) and (4) set out at [10] above.  Though it was primarily for the Board to assess the evidence and the alleged risk of harm, by reason of the matter at stake, the Court has to subject the reasoning of the Board to anxious scrutiny: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187. In R (on the application of YH (Iraq)) v Secretary of State for the Home Department [2010] 4 All ER 448 at [24] Carnwath LJ (as he then was) explained the concept of anxious scrutiny in this way:

“ … it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however … that there is a balance to be struck. Anxious scrutiny may work both ways. The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies.”

14.In the present case, we are concerned if the Board gave adequate reasons for rejecting the evidence of the 1^st applicant and holding that the risk of harm was not substantial notwithstanding all the evidence produced by him.  Though the Board referred to the medical report at paragraph 34 of its Decision and again at paragraph 111, the Adjudicator rejected the evidence of the 1^st applicant primarily because of the discrepancies between his version and that of his brother (see paragraphs 110 to 121).  He also alluded to the unlikelihood of the 1^st applicant remaining in Karachi after his return from Faisalabad if there were threats as alleged instead of moving again to Faisalabad since he was a mere employee of a shop in Karachi (paragraph 129).

15.The Board was told of the gang going to the father’s home to look for the 1^st applicant in 2016 and they assaulted the father (see paragraph 99).  The Adjudicator did not find it necessary to make any finding on this assertion.

16.The 1^st applicant had given evidence about the threatening phone calls he received whilst he was in Faisalabad.  The Adjudicator did not explain why this could not be the reason for the 1^st applicant not moving again to Faisalabad.

17.All in all, the Board’s rejection of the account of the 1^st applicant hinges on the discrepancies with the evidence of his brother (P7) notwithstanding the production of the medical report which partly supported the case of the 1^st applicant. 

18.With respect, that does not fully address the evidence put forward by the 1^st applicant.  The discrepancies can be attributable to inaccuracies in the evidence of the brother and it need not necessarily taint the credibility of the 1^st applicant.  It seems to us it is reasonably arguable that adopting anxious scrutiny (or, as put by the judge, rigorous examination) the Board did not assess the evidence adequately.

19.For these reasons, we would allow the appeal and grant leave to the applicants to apply for judicial review.

20.As explained at the hearing, at this stage we are only concerned with leave to apply for judicial review. The grant of leave only means that the application for judicial review can proceed. It does not mean that the court will find in favour of the applicants in the end. The applicants must file and serve their originating summons within 14 days in accordance with Order 53 Rule 5(5). They should also serve the documents on the respondents and file affidavit of service in accordance with Rule 5(6). The respondents are entitled to file evidence in response. The judicial review application will be processed by another judge in the Court of First Instance in the usual manner. 

1^st to 6^th applicants appearing in person