RE MATLOOB HASSAM

CACV 297/2018

[2018] HKCA 708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 297 OF 2018

(ON APPEAL FROM HCAL 944/2017)

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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 an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 22 June 2018 in HCAL 944/2015 refusing leave to the applicant to apply for judicial review. The applicant is a Pakistani National. He entered Hong Kong illegally on 9 January 2014 and was arrested on 17 January 2014. On 20 February 2014, the applicant lodged a non-refoulement claim. He was subsequently convicted of the offence of illegally remaining in Hong Kong and was sentenced to 15 months’ imprisonment on 17 June 2014. His claim was based on his fear of being harmed, or even killed, by Afzal Kant and his associates in Pakistan if the applicant were to return to Pakistan as he had supported the Pakistan Tehreek-e-Insaaf (“PTI”) political party in the 2013 General Election, which resulted in the defeat in the election of the Pakistan Muslim League (Qaaf) (“PMLQ”) which Afzal Kant supported.

2.  By the Notice of Decision dated 15 April 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director considered that the applicant’s fear would be unlikely to materialize because of the low level of risk of harm from Afzal Kant and his group against the applicant, which was indicative of a small future risk of harm upon his return to Pakistan.  The availability of state protection and the possibility of relocation would further lower or negate the level of risk of ill-treatment.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By further decision of 7 July 2017, the Director also rejected the applicant’s claim on BOR 2 risk.

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 28 July 2017, the Board dismissed the appeal on 18 August 2017. The Board found at [51] to [54] of its decision that the applicant’s account of event in relation to the threats faced by him in Pakistan was hearsay, without any corroborative or supporting evidence, and the applicant’s intention to seek non-refoulement protection in Hong Kong was also questionable.  On the totality of the evidence, the Board found that the applicant faced no genuine and substantial risk of being subjected to ill-treatment if refouled and he failed to establish his claim under all applicable grounds.

The Judge’s decision

4.  On 23 November 2017, the applicant sought leave to apply for judicial review in HCAL 944/2015.  The intended judicial review was in respect of the Director’s and the Board’s decisions.  In the applicant’s supporting affirmation filed on the same day, he put forward the following grounds for his intended challenge:

(1)   Lack of legal representation in his application for judicial review.

(2)   Lack of language assistance in not being provided with any translation of his NCF thus providing no means for him to find out if the interpreter had properly translated the basis of his claim.

(3)   No reason given for rejecting his claim under BOR 2 risk.

(4)   Lack of a fair hearing in rejecting his claim under BOR 2 risk without providing assistance or further screening interview to enable him to submit additional facts relevant to BOR 2 risk.  

5.  On 22 June 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [13] – [17] for his refusal to grant leave:

“13. His complaint in ground (1) of not being provided with legal representation in his present application for judicial review is a non-starter as it was not an issue in the process before the Director or the Board in dismissing his claim, nor is it a matter for the court in judicial review. If it were a case of him not being given 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.

14. As for his complaint under ground (2) of not being provided 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 before the Board, and in the absence of any particulars or specifics from him to show that indeed the basis of his claim had been wrongly interpreted, I find this ground of his simply speculative and without any merits.

15. His complaints under grounds (3) and (4) can be dealt with together in that it is clear that the Director did in his Notice of Further Decision dated 7 July 2017 give reasons for rejecting the applicant’s claim under BOR 2 risk after receiving no additional facts or materials from him, and for which the Director was entitled to hold that no further screening interview was necessary given the fact that it was never requested by the applicant. If indeed the applicant had any additional facts or further representation relevant to BOR 2 risk that he wanted to make, he could have done so at his subsequent oral hearing before the Board on 28 July 2017 but he never did, nor did he in his leave application now before me. In the circumstances I do not find any merits in these grounds of the applicant either.

16. In the premises and having proceeded to consider 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.

17.   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.”

6.  In the Notice of Appeal filed on 6 July 2018, the applicant in gist put forward the following grounds of appeal:

(1)   The applicant disagreed with the Judge’s observation regarding the lack of legal representation.

(2)   There was a lack of legal representation for the determination of BOR 2 claim.

(3)   The lack of legal representation was a matter of procedural unfairness and an error in law.  It also constituted a violation of the high standard of fairness and was thus a matter for judicial review.

(4)   The applicant also disagreed with the Judge’s finding on language assistance.

(5)   The BOR 2 risk claim was determined without any additional facts as the applicant did not understand the letter from the Immigration Department and there was no translation attached to it.

7.  In the skeleton submissions lodged by the applicant on 17 September 2018, he raised essentially the same grounds as those set out in the Notice of Appeal.

8.  We heard the appeal on 11 October 2018. 

Discussion

9.  Grounds 1 to 3 can be dealt with together.  As a matter of law, 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 187nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribes that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks means 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. 

10.  When the Director invited the applicant to submit additional information in support of his BOR 2 claim, he did not provide any.  At no stage of the proceedings (including the applicant’s appeal to the Board, his application for leave to apply for judicial review, and this appeal) did the applicant indicate that he intended to provide additional information in support of his BOR 2 claim.  In such circumstances, the Director was entitled to proceed with the assessment of the applicant’s BOR 2 risk on the basis of the primary materials relating to the other grounds, bearing in mind that such primary materials were prepared by the applicant’s legal representative.  We do not see any reasonably arguable basis to suggest that the lack of legal representation for the applicant’s BOR 2 claim has rendered the process unfair.  Grounds 1 to 3 are not reasonably arguable.

11.  As for grounds 4 and 5, we do not see any merit in respect of the challenge based on the lack of language assistance.  The high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desired.  It is further noted that all court documents in relation to the judicial review application and this appeal were written in English, indicating either that the applicant is familiar with the English language or that he has access to such language assistance as needed.  Accordingly, grounds 4 and 5 also fail.

12.  In any event, having read the materials available before us, we are of the view that the findings of the Board and the Director, as well as the observations of the judge, are 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 a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  We do not see any reasonable basis to challenge the decisions of the Director and the Board by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

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