RE MD ALI ASGHER

CACV 265/2017

[2018] HKCA 85

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 265 OF 2017

(ON APPEAL FROM HCAL NO 214 of 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 8 November 2017 refusing leave to the applicant to apply for judicial review. The applicant came from Bangladesh to Hong Kong on 22 November 2003. His permission to remain here expired on 24 November 2003. Since then he overstayed illegally. He was only arrested on 2 October 2011. On 5 October 2011 he lodged a non-refoulement claim. The claims were based on fear of revenge by family members of his neighbour Khokon, who was found dead on 10 February 2003. According to the applicant, the family members wrongly suspected him to have murdered Khokon and did not accept his claim of innocence.

2.  The Director decided against the claims on 4 March 2015.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a Further Decision of 24 October 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 8 November 2016, the Board dismissed the appeals on 12 May 2017.

4.  The intended judicial review was in respect of the decision of the Torture Claims Appeal Board.  The Form 86 filed by the applicant on 19 May 2017 did not contain any grounds for seeking relief.  In his affirmation of 19 May 2017, he relied on the following grounds:

(a)   Procedural impropriety in terms of failure to clarify issues at oral hearing and failure to conduct sufficient inquiry into Country of Origin Information (“COI”);

(b)   Failure to explain why the COI material was preferred to his own assertions, failure to conduct critical analysis of the COI material and cherry-picking in the use of such material;

(c)   Failure to inquire into the psychological impact, threats, harassment and the filing of false claim against him and his manner of departure from Bangladesh;

(d)   Failure to consider the concept of state acquiescence as expounded in TK v Jenkins CACV 286 of 2011 and failure to apply paragraph 2 of the UN Committee Against Torture General Comment No.2 which obliged State party to take actions that will reinforce the prohibition against torture that must be effective in preventing the same, citing also Re JKF CACV 103 of 2014, 25 November 2014.

5.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [22] to [27] the CALL-1 Form:

“ 22. I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application. I find the decisions to be without fault. Both the Director and the adjudicator analysed the material, claims and evidence carefully, logically and with caution. The applicant’s complaints in the affirmation against them and the procedures undertaken are not made out.

23. I found no substance in the grounds of this application. What was in the supporting affirmation does not cover all the grounds set out nor are they substantiated with particulars. Against the adjudicator, he is accused of procedural impropriety by failing to give the applicant an opportunity to clarify issues relating to his credibility, I quote, “the presence of ‘inconsistencies and exaggerations’ without probing further so as to afford to me sufficient opportunity to clarify the same” (paragraph 5). However, the adjudicator makes no such findings nor mentions any inconsistencies or exaggerations; this is plainly misleading.

24. The Director and the adjudicator in their decision do refer to COI material they assessed and examined. It was objective, broad-based, relevant and up-to-date. The applicant’s criticism here is, as it is with most, a bare assertion. The applicant did add in the hearing before me that the Director and the adjudicator failed to properly research. No one knows better than him what the situation is in his country.

25. It is clear from the papers the COI material was examined with State protection, the judicial system, internal relocation and corruption in mind before conclusions were drawn. It is also relevant that neither the applicant nor his family had experienced a failure by the police to discharge its duties lawfully. It was noted the applicant had made a police report and police officers had subsequently visited him but he had already left home. There was no evidence the police failed or would have failed to provide him help or protection.

26. I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

27. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

6.  In the notice of appeal of 21 November 2017, the applicant advanced the following as his ground of appeal:

“ In the Judge Decision, para 2, the Honourable Judge stated “my own view formed on the papers was confirmed having heard the applicant in person” and its true the Honourable Judge knew tha [that] I would attend my hearing in person”, so here I could say “the Honourable Judge failure to provide me sufficient preparations for my hearing, as well as I was request to adjour[n] my leave hearing date before I stand my Legal Aid application - Refusal appeal, which dated currently re-fixed on 7 February 2017, so it is appear to me, that even though my claim is lacked merit, but I have still chance to defend my claim, in my Legal Aid appeal hearing, before I attend for my leave hearing.”

7.  The applicant agreed by a letter of 21 November 2017 that the appeal can be heard by two judges.

8.  Notwithstanding the directions of 5 December 2017 from the Registrar of Civil Appeals requiring him to do so, he did not lodge any written submissions in support of his appeal. 

9.  We heard the appeal on 26 January 2018.

10.  Having considered the appeal of the applicant in light of the materials before us, we found the judge’s observations to be justified.

11.  On the facts of the present case, in particular the finding by the Board that state protection is available, there is no scope for finding risk of torture based on the concept of state acquiescence.

12.  Further, the finding of the Board (which the judge found no ground to disturb after rigorous and anxious scrutiny) was that there is no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatments which meet the high threshold as required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

13.  As regards the challenge based on the pending legal aid appeal, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187, the principles discussed in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 nor the judgment of FB v Director of Immigration HCAL 51 of 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. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration including presence of lawyer at the interview by the immigration officer.

14.  Legal aid is processed on the basis of a merit test. In light of the obvious lack of merit in the applicant’s case, the Director of Legal Aid was entitled to refuse legal aid. The judge was entitled to take the view that there should not be further delay in hearing the application notwithstanding that the legal aid appeal had not been heard.

15.  The Legal Aid appeal was heard on 7 February 2018 and the appeal was dismissed. By a letter of 7 February 2018, the solicitor acting for the applicant in the legal aid appeal informed this Court that the dismissal was based on the fact that the application was in respect of the application in the court below and that had been overtaken. The solicitor indicated that the applicant would make a fresh application for legal aid in respect of the appeal. The solicitor made it clear that they were only acting in the legal aid application and the letter to this Court was only wrote as a matter of courtesy. Hence, no submission was put forward on behalf of the applicant by the solicitor to this Court.

16.  Therefore, the position remains that there is nothing before us to indicate that there is any merit at all in the applicant’s intended judicial review. We do not find any reasonable basis to postpone the processing of this appeal further. Given that legal aid had already been refused for the judicial review, it is unlikely that he would obtain legal aid for the appeal.  Hence, notwithstanding his fresh application, we would lift the legal aid stay. 

17.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

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