RE SHAH SYED SAGHIR HUSSAIN

CACV 121/2018

[2018] HKCA 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 121 OF 2018

(ON APPEAL FROM HCAL 819 OF 2017)

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J U D G M E N T

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

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 20 April 2018 refusing leave to apply for judicial review.

2.  The applicant is a Pakistani.  He left Pakistan for the Mainland on 30 March 2007. He entered Hong Kong illegally on 4 April 2007 and was arrested by the police on 4 August 2007.  He made a refugee claim at the United Nations High Commissioner in 2007, which was rejected in 2009.  He lodged his non-refoulement claim on 6 March 2009. 

3.  The applicant’s nonrefoulement claim was based on his fear of being harmed, or even killed, by a group of supporters of the Muslim League (“ML”) because they wanted the applicant to leave the rival political party, the Pakistani People’s Party, and to join ML.  The applicant’s perceived fear was also related to the dispute with his business partner, who was also a member of ML.

4.  By a notice of decision dated 27 February 2015, the Director of Immigration rejected his claim.  The director found no indication of the involvement of the state, and that the ill-treatment suffered by the applicant did not attain a minimum level of severity.  State protection was available, and internal relocation was a viable option for the applicant.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a notice of further decision dated 24 May 2017, the director also assessed the applicant’s BOR 2 risk[4], and determined the risk against the applicant.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a direction hearing held on 20 November 2015 and an oral hearing on 26 May 2016, the board dismissed the appeal on 17 October 2017.   Notwithstanding the invitation by the board, the applicant declined to give oral evidence at the hearing.  Based on the materials available, the board found that the applicant’s claims were implausible and incapable of belief.  The board was not satisfied that there was a real risk or chance, or any substantial ground for believing that, the applicant would suffer the harm he claimed to fear if he returned to Pakistan.

7.  The applicant filed the form 86 on 30 October 2017 in respect of the decisions of the director and of the board.  The form 86 did not contain any grounds for seeking relief.  In his affirmation dated 30 October 2017, the applicant sought to rely on the following grounds:

(a)  the lack of legal representation – it was claimed that the applicant was not provided with legal representation after the delivery of the director’s first decision;

(b)  the lack of language assistance – the applicant complained that the director’s letter inviting him to submit additional information in respect of the BOR 2 risk was too technical and difficulty to understand; and

(c)  the lack of fair hearing – the representative of the director was excused from attending the oral before the board.

8.  The deputy judge held a hearing for the leave application on 19 March 2018 and dismissed the application on 20 April 2018.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the deputy judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 21 to 26 of the CALL-1 form:

“21. For his ground (a) based on lack of legal representation at the stage of his appeal to the Board, 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: per Lam VP in Tariq Farhan [2018] HKCA 17, CACV 218/2017. As in that case the applicant already had the benefit of legal representation in presenting his case to the Director, and given the details provided by him including those documents in the long list under paragraph 156 of the Director’s decision of 27 February 2015 with the assistance of his legal representation at that stage, the applicant had clearly been able to advance his case fully before the Director, which to me explains why he declined to give evidence at the oral hearing before the Board and despite repeated invitation and advice for him to do so by its adjudicator, as he recorded in the Board’s decision as follows:

‘113. Having read the papers in this case the Board decided that, following the principles set out in ST v Betty Kwan (Supra), an Oral Hearing was required. Firstly a Directions Hearing was held on 20th November 2015 at 2:30 p.m. This was followed by an Oral Hearing which was held on 26th May 2016.

114. At the Directions Hearing the Appellant was given a description of the process to be followed leading up to and in the conducting of the Oral Hearing to come. It was explained to the Appellant that at the Oral Hearing he could give evidence, that it was the sensible thing to do and that most Appellants did so and that, by doing so, ‘at the end you will have said all you want to say’. The Appellant was also told that the issue of Internal Relocation would be addressed. Other practical matters such as collecting and using the Hearing Bundle were also dealt with.

115. At the Oral Hearing, after a repetition of the process the Hearing would take and after the Applicant had produced the originals of photographs which had earlier been provided in poor quality black and white form, the Applicant declined the Board’s invitation for him to give oral evidence. The Applicant said he understood that without his oral evidence, the decision on his Appeal, which was by way of a rehearing afresh, would be made on the basis of the materials already held by the Board. 30 minutes or so later, after other procedural matters were deal with and a brief adjournment taken, the issue of giving oral evidence was again taken up with the Applicant who firmly confirmed his earlier declining to give evidence. He said ‘I have said whatever I wanted to say’. On that note the Oral Hearing concluded.’

22. Clearly that indicates to me that the applicant was content with everything he had already said and presented to the Director about his claim which were also all before the Board that he found it unnecessary to make use of the opportunity presented to him at the oral hearing to further advance his case despite the repeated invitations and advice of the Adjudicator for the Board. I am satisfied that he had had the opportunity to fully advance his case before the Board, and I do not see any merit in his argument based on lack of legal representation.

23. Regarding the complaint of lack of language assistance under ground (b) which he complains he should have been entitled to the service of an interpreter to assist him during the process and to enable him to handle the Director’s invitation for him to submit additional facts relevant to his claim under BOR 2 risk, it is clear as noted above that he had had the assistance of legal representation during the process before the Director up to the first decision during which the applicant must have been satisfied with the language assistance provided to him given the absence of any complaint then either to his legal representation or the Director, whilst thereafter in between the Director’s invitation by letter dated 5 May 2017 for him to submit additional facts regarding BOR 2 risk and the rejection again of the applicant’s claim on 24 May 2017, there is also nothing to suggest that the applicant had ever made any request to the Director for language assistance or interpretation or to the Board up to its decision on 17 October 2017.

24. It is also noted that the leave application of the applicant and his 8-page supporting affirmation were written in English and with no interpretation clause which indicates that he has access to and is able to seek the assistance he needs and that at the same time he also understands English. Furthermore, even up to the hearing of his leave application on 19 March 2018 before me, the applicant did not state or outline what additional facts or information regarding BOR 2 risk that he wished to provide. On the facts of his case I am satisfied that the assessment of BOR 2 risk relevant to his case could effectively be made on the same materials presented on his behalf with the assistance of lawyers, upon which both the Director and the Board did consider his claim under BOR 2 risk, and I do not see any merit in this complaint either.

25. As for the last complaint of the applicant about the Director or his representative not attending his oral hearing before the Board, since his appeal before the Board was a rehearing of his claim and was essentially an opportunity for him to present and advance his case fully before the Board, and even ignoring the fact that there is no such requirement of the Director’s attendance, I fail to see any reason or relevancy why the applicant would want the Director’s attendance or involvement at that stage, as after all it was the Director who had rejected his claim in the first place. There is simply no basis at all in this ground.

26. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not see any error of law or procedural unfairness in either of their decisions, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises and for the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

9.  In the notice of appeal filed on 30 April 2018, the applicant set out the grounds of appeal as follows:

“1. While I admit that I had moved house, changed address and had not informed the TCAB, I was not aware that the decision would have been sent me their decision by post. Nowhere in the process have I been informed of such. My past experience with the authorities inclusive of the peal stage with TCAB was that I was informed of any changes by the telephone. For example, the duty lawyer office would call me for appointment wand I was asked to pick up the bundle at the immigration office by phone. This is the reason why my address was not updated. Moving forward, I shall ensure that my correspondence address and telephone are both updated.

2. I so do not agree that I have already utilized the channel of appealing the decision to TCAB and hence there is no room for judicial review of this Director’s decision. I am unaware of any ‘authority from the higher courts’ and nowhere have I stated that an asylum seeker must have an absolute right to free legal representation at all stages of the proceedings. However, I did not present my case fully to Director with legal representation. This is because BOR 2 was determined without legal representation for BOR 2 because the duty lawyer’s service had been given time service for my non-refoulement claim before the director and I am aware there are other claimant who have their case including BOR 2 ground determined by the director of immigration with legal representation.

3. Having regarding to the above circumstance, I seek an order that the order set down by Deputy High court judge Bruno Chan be set aside.” (sic)

10.  By a letter dated 30 April 2018, the applicant gave consent that this appeal might be disposed of on paper without an oral hearing.

11.  The Registrar of Civil Appeals gave directions regarding the conduct of this appeal, including a direction for lodging written submissions by 23 May 2018. Instead of complying with the directions, the applicant sent to the court on 6 June 2018 the answer 35 to his non-refoulement claim form, which set out the narrative account of the factual background of his case.

12.  The first ground is not a valid ground of appeal.  It does not address any legal error or procedural unfairness that the deputy judge is alleged to have failed to consider.  Nor is there any indication as why the deputy judge should not have refused leave for the applicant to apply for judicial review in this case.  Having considered the materials available to us, we cannot find any evidence that the applicant had failed to receive any of the documents, whether from the director, from the board, or from the court.  It does not appear that the applicant had missed any of the time limits in the proceedings below.  We find nothing meritorious in this ground.

13.  Furthermore, nowhere did the deputy judge say that, as the applicant had utilized the channel of appeal to the board, there was no room for the applicant to appeal against the director’s decisions.  There is no basis to criticize the deputy judge for something that he did not say.

14.  The applicant is right to accept that a non-refoulement claimant is not entitled to free legal representation at all stages of the process.  Indeed, this is what we have said many times before: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.

15.  We fully endorse the observations of the deputy judge in paragraphs 21 to 22 of the CALL-1 form.  We are satisfied that the deputy judge applied the relevant legal principles and that his analysis is correct.  We also note that, when the applicant was invited to submit additional information in respect of the BOR 2 risk, he did not provide any.  The director was therefore fully 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 and presented by the applicant’s legal representative).  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, the persecution risk, and the torture risk.  We do not find anything amiss in relation to the lack of legal representation regarding the BOR 2 risk.  There is no reasonably arguable basis to challenge the director’s decision on this ground.

16.  Nor can we find any flaw in the deputy judge’s analysis in relation to the complaints regarding the lack of language assistance and the absence of the director’s attendance at the hearing before the board, see paragraphs 23 to 25 of the CALL-1 form.  We fully endorse the deputy judge’s conclusion that there is no basis to challenge the board’s decision on these grounds.

17.  Having considered the materials available before us, we find the deputy judge’s observations to be justified.  We do not see any errors of law or procedure 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 the non-refoulement claim is a matter for the director and the board, not for the court.  We agree with the deputy 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 the judicial review, and we dismiss the appeal accordingly.