Khan Ramzan v. Torture Claims Appeal Board/ Non-refoulement Claims and Another

CACV 82/2019

[2019] HKCA 726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 82 OF 2019

(ON APPEAL FROM HCAL 881 OF 2017)

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Before: Hon Yuen and Au JJA in Court

Date of Judgment: 5 July 2019

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.1This is an appeal by Mr Khan Ramzan (“the appellant”) from an order of DHCJ Bruno Chan (“the judge”) given on 13 February 2019 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)[1].

1.2The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 8 November 2017 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decisions of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.The appellant is a national of Pakistan born in 1985 in a village in Punjab Province, Pakistan.  From 2005 to 2008, he was self-employed as a part-time electrician; and from 2008 to 2013, he worked as a shopkeeper in a cloth store. He entered Hong Kong illegally on 20 September 2013 and was arrested by the police on the same day.  He raised his claim for non-refoulement by way of 2 written representations dated 23 September 2013 and 11 October 2013. Subsequently, he filed his non-refoulement claim form and supplementary claim form dated 20 December 2013 and 23 December 2014 respectively.    

The appellant’s allegations

3.The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s decision and in gist in the Judge’s Decision.  Put briefly, the appellant’s claim was based on his fear that if he was returned to Pakistan, he would be harmed or even killed by his 3 cousins (“the cousins”) because they want to take revenge on him as his younger brother, Khan Zakir (“KZ”) had severely injured a cousin and the son of a cousin in a fight in April or May 2013 in the course of a land dispute between his father and the cousins.    

-  Since 2013, the appellant became an ordinary supporter of Pakistan Tehreek-e-Insaf.  The cousins were wealthy and belonged to Pakistan Muslim League (Nawaz) (“PML(N)”).  They were not happy with the applicant because he did not support PML(N).

-  The appellant’s father and the cousins had a longstanding boundary dispute. 

-  Sometime in May 2013 the cousins occupied the land in dispute and built a 5-feet tall boundary wall around the land. 

-  Around April or May 2013, KZ had a fight with a cousin and/or a cousin’s son who was seriously injured.  This incident was reported by the cousins to the police, and KZ was arrested and detained for 3 days.  The cousins told the villagers that they wanted to kill KZ or the appellant in revenge.  The appellant did not report this to the police because he was not able to prove his fear.

-  KZ left Pakistan for Dubai and has stayed there.  The appellant considered that as KZ had left the country, the cousins would kill him instead in revenge.  The appellant went to Karachi on 15 August 2013 and stayed with his friend for 1 month.

-  The appellant was advised by his parents to leave Pakistan and obtained a visa to travel to China.  He arrived in Guangzhou on 18 September 2013.  He entered Hong Kong illegally on 20 September 2013 and was arrested by the police on the same day.

-  The appellant believed that the Pakistani police would not help him as they might be bribed and also it was not possible to relocate to other areas in Pakistan as the cousins would find and kill him.

4.The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2“Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3“Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap. 115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decisions

6.The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director concluded that the appellant had failed to make out his claim as a matter of fact.  The Director rejected the appellant’s claim for reasons set out in a decision given on 7 October 2015 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 6 December 2016 in respect of “BOR 2 risk” (“the Director’s Decisions”).

The TCAB’s Decision

7.1The appellant then appealed to the TCAB.  He was absent at the first hearing on 23 March 2017 and a second hearing was fixed on 2 June 2017 at which the appellant was present.  The TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”). Essentially there were inconsistencies as to the time when the alleged fight took place in relation to the building of the boundary wall (para 20), and as to who was said to be the target of the cousins’ intention to take revenge (para 25), and the TCAB noted that even though the appellant was living in his village from May to August 2013 the cousins did not harm him (para 30).

7.2The TCAB also found that the appellant’s alleged problem was by nature a private dispute without any official involvement and the alleged risk of harm is low (para 46).  He had not suffered anything more serious than verbal threats, and had not suffered any physical harm.  He failed to show that any treatment he would face would attain a minimum level of severity, or that there is a genuine and substantial risk of the alleged ill-treatment, or that there is any state acquiescence. 

Application for leave to start judicial review

8.The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The appellant set out his grounds in his affirmation in support as follows:

“I am not satisfied with the Decision made by the Director of Immigration and made by the Torture Claims Appeal Board. I am extremely afraid of being killed by my 3 paternal cousins. I believe that the Pakistani Government cannot protect me.”

The Judge’s Decision

9.1The appellant did not request for an oral hearing and therefore his application was disposed of on paper. 

9.2The judge refused leave for reasons set out in his Decision, in particular

“13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 Re Litoun Mounsy [2018] HKCA 537.

14. 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 the applicant’s 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 proceeded to consider 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

10.1By a Notice of Appeal filed on 20 February 2019, the appellant appealed the judge’s order to this court.  The appellant stated the following grounds in the Notice of Appeal:

“The learned judge wrongly [exercised] her [discretion] in that that leave to apply judicial review of the director, decision was refuse because the director [decision].

By the time the director’s decision was made, I have already lodged the appeal at the Torture Claims Appeal Board (“TCAB”), which was an appeal against their decision under the 3 grounds for non-refoulement, i.e. BOR3 risk, persecution risk, as well as torture, and not BOR2, as it was not one of the grounds under non-refoulement claim at the material time. As per the application procedure, any appeals against decisions made by the Director of Immigration should be lodged at the TCAB, not the High Court.

Having regard to the above circumstances, the learned judge ought to have considered the application procedure and not apply the time restriction in the current scenario.

The Court of Final Appeal held that the right to freedom from “cruel, inhuman or degrading treatment or punishment” [CIDTP] as enshrined in Article 3 of the Bill of Rights contained in the Hong Kong Bill of Rights Ordinance (Cap. 383 of the Laws of Hong Kong) is an absolute and non-derogable right to which there are no exceptions.”

10.2The appellant further stated his additional grounds of appeal in his affirmation:

“1. No reasonable basis for rejecting my [claim] credibility;

2. Failure to consider the extended form state acquiescence;

3. Failure to fully consider the COI [reports] in assessing risk to the Khan Ramzan;

4. Irregularity of the decision-maker being a different person than the interviewing officer;

Procedural impropriety/unfairness (failure to investigate into the country of origin information of Pakistan);

5. Irrationality (failure to place weight on relevant information and/or selectively placing weight on irrelevant information);

6. Irrationality (failure to consider a consistent system of human right violations);

Irrationality (failure to consider if state protection exists in Pakistan);

7. Irrationality (placing weight on irrelevant matters, or on inaccurate or incorrect fact(s));

8. Procedural impropriety (failing to call for psychological and/or psychiatric reports and/or evaluations);

9. Procedural impropriety (applying the incorrect standard of proof);

10. No reasonable basis for rejecting my [claim] credibility;

11. Failure to consider the extended form state acquiescence;

12. Failure to fully consider the COI [reports] in assessing risk to the Khan Ramzan;

13. Irregularity of the decision-maker being a different person than the interviewing officer;

14. No proper basis for consideration of internal relocation;

My life fear if I return my home country my life risk or receiving death.”

Legal Principles

11.It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and I will not repeat them here.  

11.3Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellant making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

13.Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

13.1The TCAB had found on the facts that the appellant’s story was not credible and in any event his dispute with the cousins was by nature a private dispute. 

13.2The judge had also clearly and correctly explained that in respect of the BOR2 claim, the Director had invited the appellant to submit any additional relevant facts but he did not do so.  In any event the TCAB had given the appellant a full rehearing in respect of all 4 claims.   

13.3Finally, the grounds advanced by the appellant in the Notice of Appeal and affirmation are vague and bare assertions made in general terms only. 

14.We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.For the reasons set out above, this appeal must be dismissed.

The applicant, unrepresented, acting in person