RE ASGHAR SAYEED

CACV 204/2018

[2018] HKCA 770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 204 OF 2018

(ON APPEAL FROM HCAL 856/2017)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 25 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 3 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 13 May 2016 and 30 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 30 January 2014 and was permitted to remain until 13 February 2014.  He was arrested on 10 June 2014 for overstaying.  After his arrest, he lodged a non-refoulement claim on 12 June 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 13 May 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 30 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 September 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 3 November 2017 (“Board’s Decision”).

7.  At [68] of the Board’s Decision, the Board found that the applicant’s case originated from a private dispute and that there was no evidence to show that the authorities did not tolerate his political opinions.  At [60] and [65] it concluded that the applicant did not face any genuine and substantial risk of being subjected to ill-treatment upon his return to India.  The Board was also satisfied at [58] and [59] that state protection would be available for the applicant.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 8 November 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 8 November 2017, the applicant advanced various grounds for judicial review which are summarised below:

(1)   lack of legal representation for the determination of his claim based on BOR 2 risk by the Director and in his appeal before the Board;

(2)   lack of language assistance in providing him with a translation of his NCF[5] for him to find out if the basis of his claim had been properly translated;

(3)   failure by the Director to give reasons for rejecting his claim under BOR 2 risk;

(4)   wrongful exercise of case management power in relying on COI[6] to assess reforms in India on police corruption; and

(5)   lack of fair hearing in not requiring the attendance of the Director at his appeal hearing before the Board. 

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [19] of the CALL-1 Form:

“12. For his complaint in ground (1) of lack of legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13. The applicant already had the benefit of legal representation in presenting his case to the Director, and that he was able to give evidence and made further representation to the Board at the oral hearing of his appeal. Even now at the hearing of his leave application before me, the applicant was able to make representation of his claim with (sic) any difficulty, and I do not find anything amiss arising from the lack of legal representation in the process of his appeal to the Board.

14. As for ground (2) in which the applicant complains of not being provided with a translation of his NCF so that he could find out if the interpreter had properly translated the basis of his claim, it is clear that his NCF was completed on his instructions with legal representation and that he was assisted by an interpreter during his appeal hearing before the Board, and in the absence of any particulars or specifics from him to demonstrate that the basis of his claim had indeed been wrongly interpreted, I find this ground of his simply speculative and without merit.

15. Ground (3) of the applicant in which he complains that no reasons were given for rejecting his claim under BOR 2 risk is plainly wrong as the Director in his Notice of Further Decision which specifically dealt with the applicant’s claim under that risk as well as the Board in its decision which dealt with that claim under BOR 2 risk together with other applicable grounds did give their reasons for rejecting the applicant’s claim. There is therefore no basis for the applicant to make his complaint in this ground.

16. As for ground (4), the applicant has failed to provide any particulars or specifics as to how and where did the Director or the Board get it wrong in their reliance of COI in assessing the reforms undertaken in India to deal with police corruption, and in the present case it is the applicant’s own evidence that he did not report any of the threats from NG[7] to the police, hence any issue of police corruption clearly did not arise in his case, and I do not see merit in this complaint of the applicant either.

17. As regard the last ground of the applicant in which he complains of lack of fair hearing in not requiring the attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting the Director’s presence, as the mechanism for the appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he would be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board. There is simply no merit in this complaint of the applicant.

18. In the premises and having considered 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.

19.   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.”

Grounds for appeal

11.  In the Notice of Appeal dated 5 June 2018 the applicant advanced a number of grounds of appeal, which can be summarised as follows:

(1)   the Board and the Director failed to apply high standards of fairness;

(2)   even though the applicant received advice from the Duty Lawyer Service, the applicant should have been given a second legal opinion;

(3)   both Prabakar[8] and FB[9]were decided over 10 years ago.  They cannot support the proposition that a non-refoulement claimant is not entitled to free legal representation at all stages of the proceedings;

(4)   the applicant did not provide additional information on BOR 2 risk to the Director because he did not have help.  He therefore disagrees with the comment that “the applicant already had the benefit of legal representation in presenting his case fully to the Director”.

12.  In his skeleton submissions dated 25 September 2018, the applicant reiterated the grounds of appeal in the notice of appeal.

13.  The applicant agreed by a letter of 12 June 2018 that the appeal can be heard by two judges.  We heard the appeal on 23 October 2018. At the hearing, the applicant submitted that the COI relied upon by the Director and the Board were raised on “filtered” information, which would include nothing adverse to the Indian government, and that the true situation was very different.

Discussion

14.  The first ground about the failure to apply the high standards of fairness lacks particulars, and thus cannot succeed.  Contrary to the applicant’s contention, the judge was unable to find any such failure by the Director or the Board in their assessment of the applicant’s claim.  As for the second and third grounds, this court has laid down the principles concerning legal representation for non-refoulement claimants in Re Zahid Abbas [2018] HKCA 15 which the judge referred to at [12] of the CALL-1 Form.  The applicant did not give any good reason as to why we should depart from Zahid Abbas.  For the fourth ground, the applicant is presumably referring to [13] of the CALL-1 Form.  We agree with the assessment by the judge at [13] that the applicant had the opportunity to present his case on BOR 2 risk at the Board hearing where he gave oral evidence and submitted documentary evidence.  There was no real prejudice from the alleged lack of assistance.  This ground also fails.

15.  The applicant’s oral submissions do not engage his grounds of appeal.  In any event, the complaint regarding COI was dealt with by the judge at [16] of the CALL-1 Form, and the applicant has not been able to demonstrate any error in the judge’s treatment of this point.  It therefore cannot assist him.

16.  There is no merit in the appeal and we dismiss the appeal accordingly.