RE RIZWAN alias RIZWAN GULISTAN

CACV 244/2017

[2018] HKCA 162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2017

(ON APPEAL FROM HCAL 292/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1.  This is an appeal from the decision of Au‑Yeung J on 27 October 2017 refusing leave to the applicant (wrongly entitled the “plaintiff” in the notice of appeal) to apply for judicial review. The applicant is a Pakistani. He departed Pakistan for the Mainland in August 2009 and came to Hong Kong illegally on 25 September 2009. He was arrested on 19 October 2009. He lodged his non-refoulement claim[1] on 21 October 2009 but later withdrew it. He resurrected the claim in May 2010. It was based on his fear of harm by a Pakistani mafia named Shafi because of a land dispute between them regarding his family house located in North Karachi, Parkistan.

2.  The director rejected the claim on 11 June 2015. The director considered that the alleged fear would not likely materialise. The availability of state protection and the possibility of relocation would also lower the perceived risk of harm.  The decision covered the BOR 3 risk, the persecution risk, as well as the torture risk[2].  By a supplemental decision of 25 October 2016, the director also assessed the BOR 2 risk[3] in respect of the applicant and decided it against him.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 27 January 2017, the board dismissed his appeal on 26 May 2017.

4.  The intended judicial review was in respect of the board’s decision.  The form 86 filed by the applicant on 14 June 2017 did not contain any grounds for seeking relief.  In his affirmation dated 14 June 2017 (exhibiting a 5‑page document entitled “RG”), the applicant deposed that:

“I make this Affirm solemnly and sincerely that all the contents are mentioned below are true and there are many irrelevant facts in decision made by Torture Claims Appeal Board dated 26 May 2017. I had not been giving any chance to submit any additional facts according to my BOR2 Claim. I did not receive any letter from Immigration department by which they had invited me to submit additional facts regarding to my Non-refoulement claim BOR2 on 13 September 2016 and I went to DLS for seek legal advised twice and I had been advised that there is no necessary for respond and mislead. I had raised this issue in Hearing and Interpreter did not interpret honestly. Decision maker just relied on COI information and my previous facts which were favor on reject my claim. Actual life occur different situation than mentioned COI information. Officer prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim …” (sic)

5.  The judge reviewed the material carefully.  After summarising the facts and background of the case and considering the decision of the board, she gave the following reasons in refusing leave at paragraphs 20 to 31 of the CALL‑1 form:

“Application for leave to apply for judicial review

20. The intended grounds for judicial review appeared only in a short affirmation of the applicant. I summarize them as follows:

(a) Irrelevant facts in the decision of the TCAB;

(b) The applicant was not given a chance to submit any additional facts according to the BOR2 claim;

(c) The applicant had been given advice by the Duty Lawyer Service and was misled;

(d) The interpreter did not interpret honestly;

(e) TCAB relied on COI[4] and previous facts when the actual situation was different from that stated in the COI;

(f) The officer ignored the overwhelming evidence of violation towards minorities;

(g) Biased and formula approach adopted by TCAB.

21. In an application for judicial review, the court would examine whether the Adjudicator had made any error of law, or handled the matter or adopted procedures without compliance with high standard of fairness as required by the law and as explained by Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

22. The court will also consider whether the application of the enhanced Wednesbury test, by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision was satisfied: AM v Director of Immigration & anor [2014] 1 HKC 416, §34; Prabakar, §45.

23. Ground (a) did not identify what facts in the Adjudicator’s decision were irrelevant.

24. Ground (b) was on an erroneous basis.  The Director had, by a letter dated 13 September 2016, given an opportunity to the applicant to address his BOR2 claim.  The applicant submitted nothing to the Director.

25. Even if the applicant had not received that letter from the Director, the Adjudicator had, at the oral hearing, asked the applicant if he had anything to say and considered his BOR2 claim (§29 of TCAB’s decision).  There was no procedural unfairness at all. Ground (b) is unarguable.

26. Ground (c) could hardly be a procedural impropriety as regards proceedings before the TCAB.  There was no duty lawyer assigned for the hearing before TCAB.  There was nothing to prevent the applicant from addressing the Adjudicator on any part of his claim.

27. Ground (d) did not identify what was dishonestly interpreted by the interpreter.  Even in his affirmation, the applicant has not identified what facts could have supported his BOR2 claim.

28. Ground (e) did not disclose any error of law or procedural impropriety.  The Adjudicator considered COI both corroborating the applicant’s version and other COI.  How he weighed the COI was a matter entirely within his power.

29. Ground (f) referred to ‘minorities’ which did not appear to be an issue, whether before the Director or the TCAB. Insofar as there was evidence of “violence”, the Adjudicator had already considered the various attacks on the applicant and his father.  The finding that the applicant had not suffered severe injuries or ill-treatment that fell within the meaning of ‘torture’ was one open to the Adjudicator.

30. Ground (g) did not define the meaning of ‘biased and formula approach’.

Conclusion

31. None of the grounds were reasonably arguable to meet the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, §§14-17. Accordingly, the application for leave to apply for judicial review is refused.”

6.  In the notice of appeal of 6 November 2017, the applicant contended:

(a) he was not given legal representation in respect of the director’s consideration of the BOR 2 risk, the appeal to the board and these judicial review proceedings, and the lack of legal representation rendered the process unfair;

(b) although he was given language assistance, he was reluctant to speak up at the oral hearing due to the lack of legal representation, and therefore failed to give evidence at the hearing; and

(c) he was not given a chance to submit additional facts for the BOR 2 claim.

7.  By a letter dated 9 November 2017, the applicant agreed that the appeal be heard by a two‑judge court.

8.  We heard the appeal on 13 March 2018. Despite the directions from the Registrar of Civil Appeals by letter dated 1 December 2017 (paragraph 3), the applicant failed to lodge his skeleton argument before the hearing.

9.  In paragraphs 24 and 25 of the CALL‑1 form, the judge has adequately dealt with the ground that the applicant was not given a chance to submit further material in support of his BOR 2 claim. We agree with the judge that there was no procedural unfairness at all.

10.  The applicant did not put forward in his original application for leave to apply for judicial review the grounds concerning lack of legal representation for his BOR 2 claim and his reluctance to speak up at the oral hearing due to the lack of legal representation.  As we have reiterated many times before, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below.  This is equally apposite in an appeal against the refusal of leave.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53 Rule 4(1).

11.  In any event, the challenge based on the lack of legal representation has no merit.  This court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment in FB v Director of Immigration [2009] 2 HKLRD 346 prescribes that a torture claimant or a claimant of BOR 2, BOR 3 or persecution risk has an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  The applicant already had the benefit of legal representation before the director when dealing with his non‑refoulement claim.  When he was invited to submit additional facts in respect of the BOR 2 risk, he did not provide any.  The director was therefore entitled to proceed on the basis that the applicant’s case on the BOR 2 risk was also based on the same primary materials relating to his other claims (prepared with legal representation).  On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk separate from the BOR 3 risk, torture risk and persecution risk.  We do not find anything amiss arising from his lack of legal representation before the board.  Having heard the applicant in court, we are not impressed by his bare assertion that he was reluctant to speak up at the oral hearing before the board due to lack of legal representation.

12.  Having considered the submissions of the applicant in light of the material before us, we find the judge’s observations to be justified.  We do not see any errors of law or procedure in the proceedings before the board and there is no reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a case is essentially a matter for the director and the board, not the court.  We agree with the judge that leave to apply for judicial review should not be granted.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.