KAMRAN KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 448/2019

[2022] HKCFI 1924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 448 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 April 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 4 February 2019 (the “Decision”).

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures.  The Director’s decisions in the Notice were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[2]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. 

3.  The Applicant is a Pakistani national, aged 30.  He was arrested in Hong Kong on 29 July 2013.  He claimed he had entered Hong Kong illegally via Mainland China on 21 July 2013.  He submitted a non-refoulement claim on 31 March 2014.

4.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6].  His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  On 18 February 2019, he applied for leave to apply for judicial review of the Decision of the Board.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him under legal advice. 

6.  The Applicant is a national of Pakistan.  He was born and raised in Village Malho, District Attock, Pakistan.  He is single and his family live in Pakistan.  He had 10 years of education.

7.  He claimed to have a land dispute with his relative, Fiaz, who was rich, influential and has a son in the military.  The subject land was originally shared by the Applicant’s family and Fiaz’ family, but Fiaz did not allow the Applicant or his family to trespass on it. 

8.  In August 2012, Fiaz attacked the Applicant at two different locations resulting in injuries to his head which required six to eight stitches.  The Applicant took a month to recover.

9.  The Applicant was attacked again by Fiaz and nine of his associates with bare hands and fists the next month.  He did not go to the hospital for treatment.  It took him a month to recover.  He did not seek protection from the Pakistani authorities because he believed the police in Pakistan were corrupt and would not help him.

10.  The Applicant was frightened by Fiaz’ brutal attacks and the military power which backed him.  He therefore fled his home city after the second attack and later to Guangzhou, China.  He then sneaked into Hong Kong illegally by boat.

The finding of the Board

11.  The Board found the Applicant incredible and did not accept his evidence.  It was the Applicant’s case that Fiaz did not allow any member of his family to “trespass” on the subject land.  However, the other members of the Applicant’s family were not assaulted.  The Applicant explained that he was targeted as his brothers were too young.  He was 20 years of age in 2012 when he was attacked, but his brothers were 18, 15 and 13 years old at the time.  He then explained that he was targeted as he was the only one going to the land.  But he could offer no reason why he had to go to the land.

12.  The Board also noted that the Applicant gave inconsistent versions of what happened in the incident in September 2012.  In the Questionnaire, he claimed that he was attacked but his oral testimony before the Board was that he was only verbally threatened.

13.  As to the alleged existence of a land dispute with Fiaz, the Board noted that the Applicant’s family apparently took no legal action and the Applicant’s decision to flee the country would have been of no assistance to his family’s claim to the subject land.

14.  On the basis of the Country of Origin Information (“COI”), the Board was also satisfied that adequate state protection and internal relocation would be available and viable options to prevent or avoid the risk.

15.  Applying the law applicable to non-refoulement protection under the USM to the facts in this case, the Board found that the Applicant had failed to prove his entitlement to protection under any of the grounds under the USM.

The applicable legal principles

16.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  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 court will scrutinize 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[7].

Grounds for judicial review

17.  His grounds for application as advanced in his supporting affirmation mainly revolve around procedural unfairness arising from lack of legal representation (paragraph 21, 23 and 26 of his supporting affirmation) and lack of language assistance (paragraph 14, 15, 16, 17, 20, 22, 23, 24 and 25).  He also complained that the decision was made on a template basis and not on a case-to-case basis (paragraph 18 and 19); and that his life is still in danger (paragraph 28).

Lack of legal and language assistance

18.  These grounds are inter-related and may be conveniently dealt with together.

19.  The Applicant accepted that he was legally represented up to the conclusion of the screening interview, but not at the appeal before the Board.  He was provided with legal assistance and interpretation service in the preparation of his NCF and his attendance at the screening interview.  He was also provided with an interpreter at the hearing of his appeal before the Board.

20.  In Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[13] nor the judgment of FB v. Director of Immigration[14] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

21.  The Applicants had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

22.  The Applicant said that the appeal bundle is in English.  He did not have sufficient time to prepare for the hearing and did not have the means to hire the services of an interpreter.  As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[15], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community.  Indeed, the Applicant was able to file an adequately well written Form 86 and supporting affirmation in English showing he has access to interpretation services.

23.  It must be noted that the appeal bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI.  He admitted that he knew what was contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knew what was contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips.  The Notice and COI are in English and unfortunately have not been translated.  As mentioned above, he has to find assistance himself from among his friends and his ethnic community. 

24.  The single most important document in the hearing bundle is the Notice of Decision which contains the reasons why the Director refused his non-refoulement claims.  It was issued on 20 April 2018. The oral hearing was conducted on 19 December 2018. In between, he had almost eight months to find out what the appeal bundle is about, if he was at all serious in pursuing his non-refoulement claim.  Except for the COI, the information in the other documents in the bundle was provided by him, although reduced into English.  He was familiar with the information.  If he needed more time to prepare for the appeal, he could have raised that with the Board, but he did not. 

25.  The Applicant complained about lack of legal and language assistance to enable him to understand the Decision and properly prepare his application for leave to apply for judicial review.  He said even now he did not understand the content of the Decision.  His complaint is premised on his belief that as an asylum seeker his is entitled as of right to such services at any time.  That is not the law.  For reasons as explained above, it was his choice to come to Hong Kong where the official languages are English and Chinese.  He has to live with his disability if he is not conversant in these languages and has to find ways around it.  The Decision was issued on 4 February 2019.  He had three months to make his application for leave and thereafter ample time to prepare his submission, if he was minded to. As reflected by his supporting affirmation, he in fact has access to language assistance. 

26.  The Applicant complained that he was served by various interpreters, some of them were not qualified.  All interpreters provided by the scheme are properly qualified and had been assessed by the government.  Before providing their services, they were required to swear on oath or affirm that they will provide their services with his best skill and ability.  Absent solid convincing evidence, his complaint is just a bare assertion.    

The Decision is a template decision

27.  The Applicant said it was his belief that the Director did not properly address the issues in his case but just made a standardised assessment as if using a template.  The Court assumed that the complaint was also directed at the Board’s Decision.  At the hearing, he confirmed that the sole basis of his belief was that the Decision was made very quickly.  The hearing was held on 19 December 2018 and the Decision was delivered on 4 February 2019.  The Board was quick but that does not mean its Decision is a template decision. 

28.  The Notice may have a similar format as notices issued in respect of other claimants.  The decisions of different adjudicators vary as a matter of personal style.  There may be some standardisation in the notices prepared by different immigration officers and decisions by the different adjudicators.  Such standardisation may be useful to ensure consistency in treatment and that nothing which ought to have been considered has been left out.  No serious complaint could be made of such standardisation.  The real issue is whether all the issues raised by the appeal have been identified and dealt with. 

29.  Having rigorously examined the Decision, the Court was satisfied that the Board had correctly identified all the issues raised by the appeal and properly dealt with them.  There was nothing to suggest that the Decision was a template decision made irresponsibly.  The Applicant’s belief was pure speculation on his part which was not supported by any evidence on which such inference could be drawn.  In fact, the only reasonable inference that could be drawn is that the Board was efficient. There is no substance in this complaint.

The Applicant’s life is still in danger

30.  In effect, this ground amounts to an appeal against the finding of fact by the Board dressed up as an application for judicial review.  It is not a proper ground for application for leave to apply for judicial review.  This complaint is reconsidered below in the Court’s overall scrutiny of the Decision.

Conclusion

31.  Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues raised in the claims.  The Applicant’s claims are founded on his fear of harm by his relative Fiaz.  The Decision of the Board was based on its finding of the Applicant’s incredibility and assessment of his risk of harm.  The Board had carefully weighed the evidence and assessed his credibility.  The Board found him incredible.  As the Applicant bears the burden of prove of his claims, such a finding is fatal.  It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  

32.  The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  There were no errors of law or procedural unfairness at any stage of the non-refoulement proceeding.  The Board observed a very high standard of fairness.  Its Decision did satisfy the enhanced Wednesbury test.  Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review was refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1

[1] s37ZR of the Immigration Ordinance, Cap. 115

[2] [2018] HKCA 549

[3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[5] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[7] [2018] HKCA 524 at para 14(1)

[8] cacv 2/2018, (unreported) 23 March 2018

[9] [2018] HKCA 14

[10] [2018] HKCA 15

[11] [2018] HKCA 17

[12] [2018] HKCA 37

[13] (2004) 7 HKCFAR 187

[14] HCAL 51 of 2007

[15] CACV 78/2018