RE ALI HAIDER

CACV 8/2018

[2018] HKCA 222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 8 OF 2018

(ON APPEAL FROM HCAL NO 353 OF 2017)

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J U D G M E N T

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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 dated 22 December 2017 refusing the applicant leave to apply for judicial review. The applicant is a Pakistani. He came to Hong Kong on 27 October 2014 with permission to remain until 3 November 2014. He overstayed and was arrested by the police on 8 January 2015. He lodged a non-refoulement claim on 10 January 2015. He was later convicted of drug trafficking and sentenced to 8 month’s imprisonment. His non-refoulement claim was based on his fear of harm and threat to his life by his own family members due to a land dispute within the family.

2.  By the Notice of Decision dated 20 October 2016, the Director of Immigration (“the Director”) rejected the claim.  The Director assessed the level of the applicant’s risk of harm upon return to Pakistan to be low.  The availability of state protection and the possibility of relocation also lowered the perceived risk of harm.  The decision covered BOR 3 risk, BOR2 risk, persecution risk, and torture risk.  The Director concluded that none of those risks would warrant non-refoulement protection in favour of the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing held on 15 May 2017, the Board dismissed the appeal on 23 June 2017. The Board found him as an unreliable witness and found that his evidence, including that on the centre-piece on his case, was not credible at all, see paras 27 to 43 of the Board’s decision.

4.  The intended judicial review was in respect of both the Director’s and the Board’s decisions.  Form 86 filed by the applicant on 3 July 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant relied on 3 grounds:

(a)  After the Director’s decision was issued, he was not provided any legal assistance, and this violated the principle of high standard of fairness;

(b)  The Hong Kong Government did not provide any language assistance and the letter from the Immigration Department seeking further information was too technical for him.  His rights were thereby jeopardized; and

(c)  The adjudicator placed a lot of weight on his credibility rather than the substantial risk that he would be under upon his repatriation to Pakinstan.

5.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at paragraphs 8 to 15 of the CALL-1 form:

“8. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and adjudicator’s decision to be without fault. They analysed the material, claims and evidence carefully. The adjudicator’s analysis of the applicant’s evidence was thorough and his finding he was not a credible witness entirely substantiated. The applicant’s complaints against them and the procedure undertaken are not made out.

9. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed his claim the applicant received no further free legal advice or assistance. The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

10. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.

11. The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis. However, the applicant here said in answer to my question during the hearing that he did not approach the scheme and ask for help with his appeal. The scheme was not even asked to provide him with representation nor assess his appeal. This ground is therefore not reasonably arguable.

12. The applicant’s second ground is a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a further decision to be issued was in English, this normally relates to a BOR 2 risk claim separately considered by the Director. The complaint is that the letter was too technical for him. He provides no further particulars. He submits the government should provide an interpreter to the applicant as and when required, I quote from paragraph 7 of the affirmation “so as to avoid jeopardising my rights”. However, in this claim the Director did not issue any letter inviting the applicant to provide further information in relation to a further decision. There was no further decision because the one decision from the Director covered and rejected all four applicable grounds together. This ground is misleading and most likely wrongly drafted. In any event, the applicant during the hearing agreed that he did not require any interpreters with any Immigration letter which made this ground redundant.

13. The applicant’s third ground complains of the adjudicator placing undue weight on credibility. There are no further particulars which makes this ground weak. In the same paragraph, the absence of an Immigration officer in the appeal hearing is questioned by the applicant. Again, this does not show how the adjudicator erred in law, acted in a procedurally unfair manner, or was otherwise unreasonable or irrational in the public law sense. There is no merit in this ground.

14. I do not find any ground that shows there was an error of law in the decisions nor do I see any evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

15. 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 5 January 2018, the applicant advanced the followings as his grounds of appeal:

“1.  The Unified Screening Mechanism (“the USM”) was implemented in Hong Kong in March 2014 following the Court of Final Appeal Judgment in Ubamaka Edward Wilson v Secretary for Security (FACV 15/2011) (“Ubamaka”).  It was mentioned in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 (“Prabakar”) that high standard of fairness should be maintained.

2.  I crave leave to submit further skeleton arguments with regards to the grounds that I have failed to specify in the application for leave to apply for judicial review.

3.  The Judge has failed to consider my grounds for application for leave for appeal especially in Paragraph 13 of the Observations dated 22^nd day of December 2017.  The Judge did not ask for further elaborations about the issue during the hearing and despite providing specific paragraphs in the Affirmation for the Judge to refer to, the Judge did not mention anything about that but instead mentioned ‘there are no further particulars which makes this ground weak’.

4.  Having regard to the above circumstances, I seek an order that the order set down by Deputy High Court Judge Woodcock be set aside.”

7.  The applicant lodged his written submission on 12 April 2018 and we have duly read and considered the same.

8.  In the written submissions, the applicant reiterated the point that the Judge did not ask for further elaboration about the issue during the hearing.  It was also argued that the process was unfair and illegal because of:

(a)  The refusal to allow legal representatives during screening interviews with immigration officers;

(b)  The failure to provide publicly-funded legal representation;

(c)  The irregularity of the decision-maker being a different person than the interviewing officer;

(d)  The lack of training of decision makers; and

(e)  The failure to provide for an oral hearing and representation at an oral hearing.

9.  We heard the appeal on 20 April 2018. The applicant further submitted that the Court should reconsider the assessment by the Board.

10.  We note that the matters as stated in paragraph 8(a), (c), (d), and (e) above had not been advanced in the Form 86 or the applicant’s supporting affirmation for leave to apply for judicial review.  As we have said repeatedly, 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).  See: Re Qadir Sher [2018] HKCA 160, and Re Rizwan alias Rizwan Gulistan [2018] HKCA 162.

11.  In any event, we do not see any merits in these new grounds.  It is plainly false to say that no legal representative was allowed at the screening interview with the immigration officer and that no oral hearings had been provided.  Nor is there any evidential basis to support the contention that the decision maker lacked training.  The mechanism that the decision maker and the interview officer were different persons is actually a safeguard for fairness.  It is also an obvious mistake for the applicant to refer to the further decision regarding the BOR 2 risk - as the Judge correctly pointed out in paragraph 12 of the CALL-1 form, “There was no further decision because the one decision from the Director covered and rejected all four applicable grounds together.”

12.  As regards the complaint of the lack of legal representation, we readily accept that a high standard of fairness is required in proceedings of this nature.  However, the crucial question is whether the Director and the Board had satisfied the high standard of fairness.  We are satisfied that, in paragraphs 10 and 12 of the CALL-1 form, the Judge has dealt with this complaint adequately.  Indeed, this Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prababar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 prescribe 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: 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 in presenting his case to the Director of Immigration.  He also told the Judge at the hearing that he did not approach the Duty Lawyer Scheme for seeking legal assistance for the appeal.  We do not find anything amiss arising from lack of legal representation in the appeal process.  We agree with the Judge that this ground is not reasonably arguable.

13.  We fully endorse the Judge’s conclusion that there is no merit in the complaint of the adjudicator placing undue weight on credibility.  At the oral hearing, the applicant was given full opportunity to further elaborate on his case before the Judge if he wished.  Having read the full decision of the Board (particularly the paragraphs identified by the applicant in his affirmation 3 July 2017), we do not find anything amiss in the adjudicator’s finding on credibility.  Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision makers.  Given the discrepancy between the information provided by the applicant to the Director and the applicant’s representation made before the Board, it was perfectly open to the Board to come to its conclusion on the applicant’s credibility.  There is no reasonable basis to challenge such evaluation of evidence by way of judicial review. 

14.  Having read the materials placed before us, we are of the view that the findings of the Board and the observations of the Judge are justified.  We do not see any errors of law or procedural in the proceedings before the Director and the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  There is no reasonable basis to challenge the decisions of the Director and the Board.  We agree with the Judge that leave to apply for judicial review should be refused.

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