Re Mehmood Qaiser

CACV 588/2019

[2020] HKCA 431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 588 OF 2019

(ON APPEAL FROM HCAL 1961 OF 2018)

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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 MEHMOOD Qaiser, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 11 December 2019 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 3 September 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”) by a notice of decision dated 21 December 2017 (“Director’s Decision”).

Bases 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 34, is a fear of being harmed or even killed by (1) one Khalid Mehmood (“Khalid”) and his accomplices because the applicant witnessed a crime they committed; and (2) his 3 paternal cousins because of a land dispute between them and the applicant and his father (“Father”).

3.The events giving rise to such fear have been set out in detail in [6] of the Director’s Decision and [8] to [34] of the Board’s Decision and in gist in [3] to [6] of the Form CALL-1 dated 11 December 2019, [2019] HKCFI 2992 (“Form CALL-1”).  Briefly:

(1)  Khalid was married to the applicant’s paternal cousin Safina Begum (“Safina”). 

(2)  Khalid and Safina’s relationship turned sour in 2006.

(3)  On 8 June 2006, a fight broke out at Khalid and Safina’s home.  Safina’s mother and 4 brothers, Khalid’s 3 maternal uncles who acted as his accomplices, the applicant and Father were also present and involved.  Khalid suddenly open fired with his rifle.  His 3 uncles attacked the applicant with weapons like hatchets and pistols.

(4)  One of Safina’s brothers was killed.  Father, Safina’s mother and 2 other brothers were seriously injured.

(5)  The applicant himself did not suffer any injury and had forgotten most of the details about this incident due to the long lapse of time despite his many attendances in court to give evidence on the incident since 2006.

(6)  Khalid escaped from the police in the same year.  A warrant was issued for his arrest but he is still at large.  Both before and after his escape in 2006, Khalid had warned the applicant not to go to the court anymore to give evidence about the incident.  The last time the applicant heard from Khalid was on 6 August 2006.

(7)  Khalid’s accomplices were arrested, convicted and sentenced.  They had been released from prison before the applicant left Pakistan.  They had threatened the applicant on Khalid’s behalf not to give evidence.  Otherwise they would kill him.  Other case related persons received similar threats though they have remained unharmed.

(8)  As for the land dispute, the applicant’s paternal grandfather (“Grandfather”) owned certain farmland in their village. 

(9)  He went missing since 1992 after a flooding.  No death certificate was issued. His 2 sons, Father and the applicant’s paternal uncle (“Uncle”), therefore could not officially inherit the land.

(10)  Uncle died sometime before 2006.

(11)  The relationship between Father’s branch of the family and Uncle’s branch had become tense since 2012 to 2013 when they began to talk about the distribution of Grandfather’s land.  There were frequent arguments, but no consensus, as to how the land should be shared.

(12)  The applicant and Father wished to divide the land among all of Grandfather’s legal heirs whilst Uncle’s 3 sons (“Cousins”) used the Land for farming themselves.

(13)  The argument continued until 2015 when Cousins sold some trees on Grandfather’s land without the applicant’s consent or knowledge.  This led to another quarrel on the land.  A fight eventually broke out.  Cousins had 7 to 8 persons on their side while the applicant was all by himself.  The applicant was kicked, punched and beaten with wooden sticks for about 15 to 20 minutes before neighbours intervened.  The applicant sustained a wound on his left chin and bruises and swellings all over his body. 

(14)  The applicant dared not complain to the police because he believed they would side with Cousins who had close connections with the then current ruling party.

(15)  Fearing further harm from Cousins, the applicant stayed with a friend in Lehry Gadari in Jhelum for a few days, during which he discussed the matter with his family. It was decided that the applicant should leave Pakistan to avoid the threats from both Khalid, his accomplices and Cousins.  Thereafter, the applicant moved in with a maternal uncle in Paran, P/O Thathi for 1½ to 2 months while arrangements were being made.

(16)  On 4 February 2016, the applicant left Pakistan for China.

(17)  The applicant had kept contact with his wife who told him that Khalid is still at large; that his accomplices had come to their home several times to look for the applicant; and that Cousins had taken over Grandfather’s land and threatened to kill the applicant if he should go back to claim the land.

Illegal entry into Hong Kong and lodgment of NRF Claim

4.On 7 February 2016, the applicant entered Hong Kong from China illegally.  He was arrested on the same day.  He raised the NRF Claim on 10 February 2016 by submitting a non-refoulement claim form.

Director’s Decision

5.In processing the NRF Claim, the Director’s representatives conducted a screening interview on 13 December 2017 with the applicant who then had legal representation from the Duty Lawyer Service (“DLS”).

6.The Director’s Decision found the NRF Claim unsubstantiated under all applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

Appeals to Board and Board’s Decisions

7.The applicant appealed to the Board against the Director’s Decision on 2 January 2018.

8.After a rehearing on 22 June 2018 conducted before the Board[5], at which the applicant testified before, and answered questions by, the Board through an Urdu and English interpreter, the Board dismissed the appeal on 3 September 2018.

9.In so doing, the Board entertained doubts as to the truth of the applicant’s account of the 2006 shooting incident or the claim that the applicant had been required as a witness before the court in the matter.  And even if it were accepted the incident occurred as claimed and that the applicant was present and was a potential witness in the prosecution of Khalid and his accomplices, the Board was persuaded that the applicant is not now at risk of any harm because of it.  First, he remained safe in Pakistan for 10 years after he witnessed the shooting. Second, Khalid and his accomplices have not harmed any of the other witnesses who were responsible for the conviction and imprisonment of Khalid’s accomplices.

10.As for the land dispute which the Board accepted, the Board considered the possibility that Cousins would kill the applicant or subject him to serious harm to be remote.  They made no attempt to locate or harm the applicant when he moved to another place before he left Pakistan.  The Board was also of the view that the applicant could avoid any risk of harm he faced from Cousins in his home area by relocating within Pakistan which would not be unreasonable or unduly harsh.

Application for leave for judicial review and Judge’s Decision

11.By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1961/2018 on 18 September 2018 (“Form 86”), supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on these 10 grounds:

(1)  No reasonable basis to question his credibility;

(2)  Failure to consider the extended form of (state) acquiescence;

(3)   Irregularity – the decision-maker being a different person from the interviewing officer;

(4)  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)  Irregularity (failure to consider a consistent system of human right violations);

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

(8)  Irrationality (placing weight on irrelevant matters or on inaccurate or incorrect facts);

(9)  Procedural impropriety (failure to call for psychological and psychiatric reports and/or evaluations); and

(10)  Procedural impropriety (apply the incorrect standard of proof).

12.After hearing the application in open court at which the applicant was present and was assisted by an Urdu interpreter, the Judge refused leave.  His reasons can be found in [14] to [19] of the Form CALL-1:

“DISCUSSION

The Board’s Decision

14. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained to him. His friend had assisted him with the Hearing Bundle and the Board’s Decision.

15. I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments on them, but he did not agree with the Board.

16.  It is quite obvious that the Board did not accept the important facts in support of his claim.  Therefore, he had no factual basis for his claim.  Those grounds above are quite irrelevant because they are his opinions without any evidence in support of them.

17.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

18.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

19.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

Appeal to Court of Appeal - grounds of appeal and submission

13.By the notice of appeal filed herein on 17 December 2019, the applicant appealed against the refusal of leave for judicial review on the following ground (sic):

“I am not satisfy about this order. I want justice. So I appeal to the Court of Appeal. On 11 December the [Judge] dismissed my leave to apply for judicial review. The [Judge] did not concider all my points. He only follow the decision of the [Director] and Adjudicator of the [Board]. The judge fully sopport them. Even for their support he write total decision. But could not write his own decision. So I am appeal against his order”

14.By his written submission dated 7 May 2020, the applicant asserted (sic):

“… I came Hong Kong to save my life. In Pakistan I had political problem. My enemy want to kill me. They were to much powerfull and influencial. I am like a nut so they can kill me very easily. So finding any way I run away from Pakistan and came Hong Kong.

After I came Hong Kong I applied non refuelment claim for protection. But my immigration officer without any proper screening. But he cancel my claim which is unfortunate for me. He can cancel it very easily but for me to much problem. My adjudicator also cancel my claim just follow the immigration officer.

I request the judges to accept my leave and protect my life.”

(emphasis added)

15.The applicant did not appear at the hearing of the appeal on 27 May 2020.  We shall decide his appeal on the papers before us.

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[6]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

18.The applicant has simply failed to state in the notice of appeal or the written submission in what ways the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. 

19.First, a bare assertion that the refusal of leave was incorrect (without specifying how) is, and could, not be a ground of appeal, properly so called.  In this regard, we have not overlooked the complaint that the Judge did not consider all the points made by the applicant.  The Judge had indeed not separately dealt with each of the proposed grounds for judicial review of the Board’s Decision set out by the applicant in his affirmation in support of the Form 86 as listed in [11] above.  In our view, it was unnecessary for the Judge to do so given the Board’s primary findings of fact as to the risk of harm (or rather, the lack thereof) which, in the absence of error of law, procedural unfairness or irrationality, are not open for challenge.  As explained in [16] above, the assessment of risk of harm is within the purview of the Board (after the Director), and not the judge of the Court of First Instance in dealing with an application for leave for judicial review.  The Judge was quite right in saying that the proposed grounds for judicial review are irrelevant.  Anyway, the 10 proposed grounds for judicial review were presented in the style of headings without any contents or particulars, upon which the Judge could reasonably act on.

20.Second, the applicant’s statement in the first paragraph of the written submission that he cannot return to Pakistan because of his “political” problem there is inconsistent with the NRF Claim which is premised upon a fear of violence from his cousins which cannot be characterised as political in nature at all.

21.Third, the statements in the middle paragraph of the written submission target the Board and/or the Director.  As explained in [17] above, 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. 

22.In any event, insofar as the conduct of the Board is concerned, the allegation that it merely followed the Director is plainly unjust.  The Board conducted a rehearing. It set out and independently analysed the applicant’s information and evidence, and explained its assessment of the lack of risk of harm in both aspects claimed by the applicant, in great details in paragraphs 21 to 43 of its decision.  We can find no fault with the Board’s reasoning.

Disposition

23.For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

The applicant, unrepresented, absent

[1] 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.

[2] 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.

[3] 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).

[4] 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.

[5] Via the remote official visit system as the applicant was in custody.

[6] [1954] 1 WLR 1489.