RE HUSSAIN IFTIKHAR

CACV 364/2019

[2019] HKCA 1360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 364 OF 2019

(ON APPEAL FROM HCAL NO. 1354 of 2018)

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JUDGMENT

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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 Lung (“the Judge”) given on 29 July 2019 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 27 June 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 15 June 2018 dismissing his appeal against the Director’s decision.    

2.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 8 July 2010.  After he was arrested by the police, he lodged a torture claim on 9 July 2010, which was assessed as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014. 

3.  The applicant’s claim is based on his fear of being harmed or killed by the supporters of the Shia Sect because he belonged to the Sunni Sect, and was an active member of Al-Sunni Jamat, and he had refused to join the Shia Sect.  His case was set out in details in [12] of the decision of the Director’s decision and [12] to [24] of the Board’s decision.  In gist, the applicant claimed to have suffered three attacks in 2001, April 2002 and July/August 2002.  On the first occasion, he was beaten up by some Shia students in school with fist and hockey sticks after they had an argument on their religious belief.  On the second occasion, he was attacked by members of the Shia Sect, after he refused to join their group.  He did not sustain serious injury.  On the last occasion, he was shot in the leg and beaten up by a group of unknown males who warned him he should leave his Sunni religion and his post as secretary of the Al-Sunni Jamat.  He was hospitalised for 20 days. Despite a report was made to the police. No investigation was carried out. After he was discharged from the hospital, he went to stay with his sister, and later with his father’s friend, but the Shia group kept looking for him. Fearing for his safety, he left Pakistan for Shenzhen in May 2010, and eventually sneaked into Hong Kong.       

4.  By the decision dated 27 June 2017, the Director rejected the applicant’s claim having regard to the torture risk[1], persecution risk[2], BOR 3 risk[3] and BOR 2 risk[4] grounds.

5.  The applicant appealed the Director’s decisions to the Board, which heard the appeal on 28 March 2018.  By a decision dated 15 June 2018, the Board dismissed the appeal.  For the reasons set out in [61] to [98] of the decision, the Board had doubts about the credibility of the applicant’s claim. The Board was prepared to accept that a certain level of partisan violence and harassment might have occurred at the village level which caused the applicant, as a member of the Sunni Sect, to have been beaten up.  However, the Board rejected the applicant’s claim that he would face harm if refouled because of his role in Al-Sunni Jamat or Taliban Jamat.  The Board also did not accept the Shia group would be able to track him down or had intention to do so.  The Board further found state protection and internal relocation are reasonably available, and there is no evidence of state acquiescence in the attacks on the applicant.  The Board concluded that the applicant failed to establish a case in respect of any of the applicable grounds. 

6.  The applicant filed his Form 86 together with a supporting affirmation on 11 July 2018 seeking leave to apply for judicial review against the decision of the Board.  At the applicant’s request, the Judge heard the leave application at a hearing held on 27 December 2018. 

7.  The applicant relied on the following grounds for seeking relief:

(1)  The applicant was unable to attend the screening because of illness, which was supported by medical certificate, but the Director proceeded to assess his application without giving him an interview.  This amounts to procedural irregularity as the applicant had the right to elaborate on his case in the interview.

(2)  The Director adopted biased and formulaic approach to the issue of state protection, and cherry-picked country of origin information (“COI”) that was adverse to the applicant’s case.

(3)  The Board adopted the same approach with regard to state protection.

(4)  The Board’s decision was not translated to the applicant.

8.  By the Form CALL-1 dated 29 July 2019, [2019] HKCFI 1911, the Judge refused to give leave to the applicant to apply for judicial review. He considered the intended judicial review was not reasonably arguable and had no realistic prospect of success.  He gave his reasons at [12] to [23] as follows:

“The [Director’s] Decision

12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered his appeal and made its Decision.

13. Ground (1) appears to be special circumstances which require further consideration because there is no dispute that the immigration officer had asked the applicant to produce a medical certificate to prove that he was unfit to attend the interview scheduled on 15 June 2017 by 16 June 2017. The applicant had complied with the request and the immigration officer was satisfied that he was unable to attend the interview on 15 June 2017 on medical reason. Nevertheless, the immigration officer decided to assess his case on the papers. He sent the questionnaire to the applicant for answers. The applicant had provided the answers as requested. The Director assessed his application on the papers accordingly.

14. Under section 37ZB of the Immigration Ordinance, Cap 115 (“the Ordinance”), the immigration officer has the power to require information from the applicant. Under section 37ZB(1)(b), the immigration officer has to have an interview with the applicant:

(1) After a completed torture claim form is returned by a claimant, an immigration officer—

(a) may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies; and

(b) must require the claimant to attend an interview to provide information and answer questions relating to the claimant’s torture claim.

15. The Adjudicator was alive to this issue as stated in her Decision dated 15 June 2018. See paragraphs 6 & 7 of the Board’s Decision.

16. Against the above background, the Adjudicator decided she would hear the case afresh. See paragraph 10. I consider that the Adjudicator had given good reasons for her to hear the case afresh. See Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018, §19.

17. Therefore, the procedural irregularity under section 37ZB of the Ordinance has been addressed and remedied by the Board.

18. Since the applicant has not set out any other exceptional circumstances, his application for leave simply fails in limine.

19. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 held that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.” [45]

20. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

21. Ground (1) has been dealt with. Grounds (2) and (3) relate to the discretion of the Director and the Adjudicator in the weighing of the evidence before them in relation to the COI. These grounds are the applicant’s opinions without any evidence in support of it. They are therefore unsubstantiated and fail.

22. At the hearing before me, the applicant confirmed that he had a fair hearing before the Board and his friend had explained the Board’s Decision to him. The applicant did not make any further submissions on the grounds in support of his application. Ground (4) is thus inconsistent with he said before this court.

23. For the reasons above, I find that the applicant fails to show that he has any reasonable chance of success in his judicial review.”

9.  The applicant filed a notice of appeal on 7 August 2019 to appeal the Judge’s decision.  In summary, the applicant advanced the following grounds of appeal:

(1)   The applicant could not read or write English, and was not legally represented.  It was procedurally unfair that the authorities and the court failed to have regard to his lack of language and legal assistance.  The Board’s decision and the Judge’s decision were not translated or read to him in his language.  He did not have financial means to seek assistance.

(2)   The Judge did not deal with the complaint about COI under Grounds (2) and (3) fairly. 

(3)   The Judge failed to elaborate on the reasons for rejecting my claim.  This was done deliberately to make it hard for the applicant to appeal. 

10.  In his written submission, the applicant asked for a reconsideration of his case on the ground of unfairness and unreasonableness.  Apart from repeating the complaints he made about the lack of legal and language assistance, the applicant also stated that it was not true that he could understand the Board’s decision in that while his friend had explained it to him, he could not understand the legal jargons.          

11.  We heard the appeal on 3 December 2019.  At the hearing, the applicant reiterated that the Director unfairly deprived him of a screening interview when he was sick and had a medical certificate to prove it, and that he needed legal help as he would still face danger in his country.

12.  For the reasons set out below, we are of the view that the grounds of appeal and the arguments put forward by the applicant are unarguable.

13.  First, in respect of his complaint about the Director refusing to reschedule his screening interview after his repeated absence, this was considered by the Board.  Even if there had been unfairness in the screening process before the Director, which we do not accept, it would have been overtaken by the appeal before the Board.

14.  Second, on the complaint about procedural irregularity and unfairness arising from lack of language and legal assistance, it should be noted that the applicant had received free legal service from the Duty Lawyer Service in presenting his claim to the Director.  At the hearing before the Board, the applicant was assisted by a Pakistani interpreter, and he had also confirmed to the Board that he understood the procedures as interpreted to him.  The applicant was also assisted by an interpreter at the hearing before the Judge.  Both before the Board and the Judge, there was ample opportunity for the applicant to articulate his case through the interpreter.  It is clear law that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings.  Looking at the circumstances of this case, we do not accept the applicant has shown there was procedural irregularity or unfairness arising from the fact that he acted in person. Importantly, too, the applicant had not specified what elaborations he would have, but had not, made due to the lack of legal or language assistance.     

15.  Third, on the complaint about the Judge’s dealing with the grounds relating to COI, the applicant only made a general assertion that the Director and the Board was not even-handed in their approach to COI on the issue of state protection.  The applicant did not provide details or elaborations to support his assertion.  This being the case, there was no proper basis for the Court to interfere with the Director’s or the Board’s consideration of the COI.  

16.  Fourth, as to the complaint that the Judge did not give detailed reasons, on the facts of this case, we are of the view that the Judge had given sufficient indication of his reasons for refusing the application.      

17.  For the above reasons, we conclude there is no merit in the appeal.  Accordingly, we dismiss the appeal.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.