Re Riaz Yasmeen

CACV 135/2018

[2018] HKCA 576

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 135 OF 2018

(ON APPEAL FROM HCAL NO. 435 of 2017)

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REASONS FOR JUDGMENT

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Hon Chu JA (giving the Reasons for Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 23 April 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 7 July 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 January 2017 rejecting his non-refoulement claim under the BOR 2 Risk[1] ground.  

2.The applicant consents to the appeal being heard by a two-judge Court.[2]  He had also lodged a written submission in support of his appeal. He was, however, absent at the hearing.  For the reasons set out below, we had dismissed the appeal.

3.The applicant is a Pakistani national.  He arrived in Hong Kong on 25 March 2014 but was refused permission to enter.  On the same day, he made a non-refoulement claim based on his fear that, if he were to return to Pakistan, he would be harmed or killed by supporters of the Pakistan People’s Party (“PPP”) because he was a supporter of a rival party, Pakistan Muslim League (N) (“PMLN”) and had refused to join PPP. 

4.According to the applicant, his grandfather was the secretary general of the PMLN in his home village, Village Gojra in Punjab province.  Like his father and brothers, he was an active PMLN supporter, and had been involved in holding public gatherings, recruiting supporters and canvassing votes for the party during elections.  During the Provincial and National Assembly election held in April/May 2013, the applicant helped with the election campaign of PMLN.  One day in February 2013, while he and four PMLN supporters were putting up posters in the street, a group of six to eight PPP supporters approached them and asked them to quit PMLN and to join PPP.  They refused.  Some abusive words were exchanged between the two sides and a fight ensued, which ended when some senior villagers intervened.  Before they left, the PPP supporters threatened the applicant they would teach him a lesson.  The applicant sustained injury to his right shoulder during the incident, but did not require treatment.

5.Later in the same year, during the local election, the applicant was again threatened by PPP supporters.  On one occasion, they attacked him and other PMLN supporters and even fired a gunshot in the air to threaten them.  The applicant was injured in his left elbow which took one month to recover.  The applicant left home to live with his aunt.  During this time, he received two phone calls threatening to harm and kill him if he refused to join PPP, and some PPP people also went to his aunt’s house to look for him.  Fearing for his safety, he departed Pakistan for Guangzhou on 17 March 2014, from where he went to Shenzhen and eventually came to Hong Kong. 

6.By a Notice of Decision dated 17 June 2014, the Director rejected the applicant’s claim having regard to the torture risk[3], the BOR 3 risk[4] and the persecution risk[5].    

7.On 2 July 2014, the applicant lodged an appeal to the Board against the Director’s decision.  About two weeks later, the applicant sent two letters to the Board requesting to cancel or withdraw or abandon his appeal. By letter dated 21 July 2014, the Board informed the applicant that his appeal had been treated as being disposed of and finally determined, and no further action would be taken in relation to it.  In August 2014, the applicant wrote to the Board requesting to “re-open” his appeal.  On 11 December 2014, the Board refused to reinstate the application.

8.By letter dated 15 December 2016, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk.  Not having received a response from the applicant, the Director proceeded to assess the applicant’s claim under the BOR 2 risk ground based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.

9.By a Notice of Further Decision dated 4 January 2017, the Director decided against the applicant.  The Director considered that the applicant had failed to establish a personal and real risk of violation of his rights under the Hong Kong Bill of Rights Ordinance, including the right to life under BOR 2, upon his return to Pakistan.  

10.The applicant appealed the Director’s further decision to the Board and put in four pages of grounds of appeal.  The applicant also adduced documents showing that: (1) the politician who was offended by the applicant’s refusal to join PPP was by the name of Nazar Muhammad Gondal; and (2) this man and his people had gone to the home of the applicant’s sister to look for him after his departure from Pakistan.

11.Having considered the written grounds of appeal and the new materials submitted by the applicant, the Board decided it was not necessary to conduct an oral hearing.  By its decision dated 7 July 2017, the Board dismissed the appeal.  The Board noted that, contrary to what the applicant stated in his interview with the Immigration Department, PMLN had won the National Assembly and Provincial Assembly election in 2013, and the PMLN candidate in the applicant’s constituency also won in the election.  The Board reviewed the relevant principles (at [14] to [20] of its decision) and observed that the perpetrator that BOR 2 protects against is the government of nationality of the claimant.  Having regard to the material facts set out in [22] of the decision, the Board found that the applicant failed to show there was or would be a necessary and foreseeable breach of the right protected by BOR 2, and there was no evidence showing the applicant would be at risk of harm from capital punishment inflicted by the government of Pakistan or would face harm from his government that would place his life at risk.    

12.The applicant filed his Form 86 on 21 July 2017 seeking leave to apply for judicial review against the Board’s decision of 7 July 2017.

13.In his affirmation filed together with the Form 86, the applicant explained that he withdrew the appeal against the Director’s first decision because his enemies had promised not to harm him on his return, but he learnt later they still intended to take revenge upon his return, so he applied to reinstate his appeal.  He claimed that his family members had been tortured by Nazar Muhammad Gondal, and his elder brother had to flee the country to save his life.

14.The applicant further raised a variety of complaints against the decisions of the Board and the Director.  In summary, he complained that:

(1)   It was procedurally unfair and improper for the Board to reject his appeal without holding an oral hearing.  As he did not receive the Director’s letter dated 15 December 2016, he was unable to put forward additional facts and grounds for the BOR 2 risk assessment.  The Board also did not give him a chance to provide additional facts, and relied only on his previous papers.

(2)   The Board did not indicate in its decision whether it accepted the new facts submitted by him, and if it did not, the reasons for it.

(3)   The Director failed to carry out sufficient research and inquiry into the Country of Origin Information (COI), was selective in his approach to COI, and did not evaluate and make a finding on the situation in Pakistan.

(4)   The Director wrongly ignored or rejected the fact that his opponent belonged to PPP, a famous political party, that the applicant had been assaulted and threatened, and that after his departure from Pakistan, his enemies were still looking for him.

15.On the applicant’s request, an oral hearing was listed for 19 December 2017.  The notice of hearing was given on 20 September 2017.  At the hearing, the applicant requested an adjournment on the ground that his legal aid application was pending.  He claimed that he applied for legal aid in July, shortly after he filed his Form 86.  The Court was in receipt of a memo from the Director of Legal Aid dated 27 September 2017, which indicated that a legal aid application was pending and requested for an index of the documents filed in court.  The Judge was of the view that the memo suggested that the applicant only applied for legal aid after the notice of hearing dated 20 September 2017 was issued, but the applicant insisted he made the application in July.  The applicant, however, had not brought with him his legal aid card, which would show the date of the application.  The Judge considered that it was a late legal aid application, and proceeded to hear the application.  At the conclusion of it, she adjourned the case to the following day for the applicant to produce his legal aid application card.  The applicant did not attend the adjourned hearing.

16.The Judge refused to give leave to apply for judicial review for the reasons stated in [5] to [12] of the CALL-1 Form dated 23 April 2018:

“5. There is no requirement for the Director to hold another interview in particular, where there is no additional information supplied by the applicant. He can rely on the interviews previously conducted. It is abundantly clear in any event, that BOR 2 was not relied upon by the applicant from the outset.

6. The adjudicator of the TCAB decided that it was not necessary to conduct an oral appeal hearing in relation to the BOR 2 risk claim appeal. This is despite the fact the applicant had submitted four pages of grounds of appeal. The adjudicator identified the grounds to be new material or evidence from the applicant.

7. The adjudicator set out Article 2 in her decision and analyse the applicant’s case and evidence. What she finds is that on the applicant’s own evidence, he was not relying on a breach of the rights protected by BOR 2. He did not put forward evidence to show he would be at risk of harm from capital punishment inflicted by the government of Pakistan or face harm from his government that would put his life at risk. He was never saying that if refouled there was a real risk of a breach of BOR 2. There was no necessity of an oral hearing.

Leave to apply for judicial review

8. The applicant’s affirmation is not easy to decipher mainly because he refers to and sets out grounds against the decisions of the Director and TCAB that are not subject to this application.

9. Grounds relevant to the decision subject of this application include a submission it was the fact the applicant did not receive any letter inviting him to submit further or additional information regarding his BOR 2 risk which prejudiced his chances. It was unfair that he was not afforded an oral hearing before his BOR 2 claim was dismissed. It was also improper that his appeal was determined without an oral hearing.

10. In court, the applicant reiterated that he had no chance to provide further information and it was unfair he had no appeal hearing. I find no merit in his grounds. The adjudicator still maintained a high standard of fairness despite not conducting an oral hearing. It is not an automatic right and in a situation such as this, there would have been no necessity when there was no point of law, no issue of credibility nor any questions that required clarification.

11. I do not find any ground that shows there was an error of law by the adjudicator or the Director. 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.

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

17.In the Notice of Appeal dated 3 May 2018, the applicant reiterated his complaint about not being given an oral hearing before the Board on his appeal against the BOR 2 risk determination.  It was said that the failure to hold an oral hearing amounted to procedural unfairness, a breach of the high standard of fairness and an error of law because he did not have legal representation when the Director wrote to ask him to submit additional facts in relation to a BOR 2 assessment, and he did not know what BOR 2 was about.  The applicant said that the Judge failed to consider that he should only be deemed to have nothing to add after the authority had advised him of, and ensured, he understood his rights and obligations; hence the Director’s rejection of his claim under the BOR 2 ground was unfair, given he did not have legal and language assistance.   

18.We note, firstly, from the applicant’s notice of appeal (at [2]) and written submission (at [4]) that he now accepts he did receive the Director’s letter of 15 December 2016 inviting him to submit additional facts relevant to a BOR 2 assessment.  This is contrary to what he stated in his affirmation filed in support of the judicial review application (see [10] of exhibit “RY” to the affirmation).    

19.Secondly, to the extent the applicant now seeks to rely on lack of legal and language assistance as a basis for his judicial review application, this is a new ground that was not raised in the court below.  An appeal against the refusal of leave to apply for judicial review is not a rehearing of the application for leave, and is not an occasion for an applicant to raise new grounds after his original grounds failed, otherwise an applicant can simply disregard the time limit for applying judicial review in Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A. 

20.Further, this argument about lack of legal representation and language is fact-and-evidence sensitive.  This Court had said that new arguments that are fact-and-evidence sensitive and have not been canvassed before the Court of First Instance and for which leave has not been sought within time will generally not be entertained on appeal: see for instance, Nupur MST v. Director of Immigration [2018] HKCA 524 at [14(2)] to [14(4)], and United Muslim Association of Hong Kong & Others v. Yusuf Yu & Others [2018] HKCA 451 at [40] and [41].  In the present case, the applicant had said nothing about this in the Form 86 or the supporting affirmation, and there is no evidence in the Court of First Instance to support this new argument.  Despite the applicant’s complaint that he did not understand what BOR 2 entailed and his rights, he had provided new materials to the Board in his appeal.  We are of the view that the applicant should not be permitted to rely on this new ground. 

21.Thirdly, with regard to the applicant’s complaint that the Board determined his appeal against the Director’s BOR 2 assessment without holding an oral hearing, this Court has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at paragraph 26.

22.On the facts of the applicant’s claim and in the light of the scope and threshold of a BOR 2 claim, there is no room for engaging the BOR 2 ground.  No useful purpose would be served by an oral hearing.  The Board’s decision not to hold an oral hearing did not amount to any procedural unfairness or breach of the high standard of fairness.  We further note that the applicant has not identified what additional facts or grounds he would have put before he Board at an oral hearing that could advance his case under the BOR 2 risk ground. 

23.We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused.  Accordingly, we had dismissed the appeal.

The applicant, unpresented, acted in person.