RE AHMAD ASIF

CACV 77/2018

[2018] HKCA 428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 77 OF 2018

(ON APPEAL FROM HCAL NO. 391 of 2017)

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REASONS FOR JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 23 March 2018 refusing him leave to apply for judicial review.  The intended judicial review is against: (1) the decision of the Director of Immigration (“the Director”) dated 2 June 2016 rejecting his non-refoulement claim having regard to the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]; (2) the further decision of the Director dated 29 March 2017 that assessed the BOR 2 risk[4]; and (3) the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 9 June 2017 dismissing the applicant’s appeal against the further decision of the Director.

2.  By letter dated 3 April 2018, the applicant agreed to this appeal being heard by a two-judge court. 

3.  The applicant was absent at the hearing of the appeal.  We dismissed the appeal and indicated that we would give our reasons in writing, which we now do.

4.  The applicant is a Pakistani national.  He left Pakistan for China in October 2012, and later entered Hong Kong illegally.  He was arrested by the police on 27 January 2013.  He raised an asylum claim on 31 January 2013.  In March 2014, he requested his claim to be processed under the Unified Screening Mechanism.  The applicant’s non-refoulement claim was based on his fear that, if he was to be refouled to Pakistan, he would be subjected to ill-treatment or even life danger posed by the Shias of Baseen Pain (“BP”).

5.  The applicant was born and raised in Jageer Baseen (“JB”), Gilgit city and is a Sunni Muslim.  JB is inhabited by Sunnis while BP is occupied by Shias. The two areas are adjacent to each other, separated by a footbridge.  There had been conflicts between the Shias and the Sunnis in the two areas since many years ago.    

6.  The applicant’s claim stemmed from a conflict that occurred during a religious rally of the Shias of BP that took place in Muharram in or about 2011, the precise date of which the applicant cannot recall.  On that occasion, the participants of the rally, instead of taking another route, deliberately passed through JB to reach their mosque.  The Sunnis in JB reacted by gathering their people and setting up barricades to stop the procession, which was led by police officers.  The Sunnis were however outnumbered by the Shias.  They threw stones and bricks at the procession whereupon tear gas was fired by the police officers.  In the course of the confrontation, the main leader of the Shias was badly injured and later died of the injuries.  This led to a period of violence and property damage caused by the angry Shias.  

7.  About two to three months after the confrontation, two of the small group leaders of JB’s Al-Jehad (a committee tasked to oversee the safety of the people in JB) were killed.  The applicant, who was one of the small group leaders, left JB for Karachi together with four other small group leaders.  Many of the other small group leaders continued to live in JB.  In about May or June 2012, the applicant learnt that photographs and names of all the small group leaders of the Al-Jehad were published in a local newspaper with the heading “If you see any of them, help us kill them! You will be rewarded 50,000 rupees!”

8.  The applicant says that Shias are in majority in Karachi, and they are connected to the Muttahida Qaumi Movement, which is responsible for widespread political violence in the country.  He also relies on two attacks when he was in Karachi.  The first attack happened shortly after he learnt of the publication of the small group leaders’ photographs in the newspaper.  The applicant and his friends were in a grocery shop when they were attacked by a group of 10-12 people wearing face masks and carrying choppers, wooden sticks and firearms.  They were beaten for several minutes until police were called to the scene, and the group then ran away.  The applicant and his friends were severely injured and hospitalised for 10-12 days.  The second attack occurred in July or August 2012 at the same grocery shop.  The applicant and his friends were attacked by a group of 10-12 people wearing masks and carrying hockey sticks.  They fought back with wooden sticks, and the group of assailants eventually went away.  The applicant did not sustain any injuries in the attack.

9.  The applicant made arrangement to leave Pakistan for Hong Kong after the second attack as he learnt that Hong Kong could provide protection to asylum seekers.  On his arrival in Hong Kong, however, he did not lodge a claim until he was arrested by police because he did not know where he should go to do so.  

10.  By a Notice of Decision dated 2 June 2016 (“the Director’s First Decision”), the Director rejected the applicant’s claim.  The Director considered that the confrontation was an ad hoc single event, the newspaper that published the small group leaders’ names and photographs is a local newspaper, there was no indication that the applicant would be singled out by the Shias for personal persecution or that there were attempts to trace his whereabouts, and no severe pain and suffering was occasioned to the applicant in the two attacks.  The Director assessed the level of risk of harm to the applicant by the Shias in BP upon his return to Pakistan to be low or unlikely to materialize.  Separately, the Director also had doubts over some significant aspects of the factual basis of the applicant’s claim.  The Director further noted there was no evidence of the attacks on him or the harm that his enemies may inflict on him were committed by or at the instigation of or with the consent or acquiescence of the national government of Pakistan.  The Director had regard to the applicant’s submission that the police in Pakistan was corrupt and inefficient, and the relevant country of origin information, and took the view that reasonable state protection and internal relocation alternatives are available, and that this would lower or negate the perceived risk of harm.  The Director accordingly rejected the applicant’s non-refoulement claim under the BOR 3, persecution and torture ground.  

11.  On 5 September 2016, the applicant applied to the Board for permission to file a notice of appeal/petition against the Director’s First Decision out of time.  On 16 December 2016, the Board refused the application without a hearing.  The Board explained in the decision dated 9 June 2017 (see [13] below) that the application was 11 weeks out of time, which was a serious and significant failure to comply with the rules, the applicant had no good reason for the delay, and it was fair and just not to allow the late filing of the appeal.

12.  By letter dated 14 March 2017, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk.  Not having received a response from the applicant, the Director proceeded to consider the applicant’s claim on the ground of BOR 2 risk based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 29 March 2017 (“the Director’s Further Decision”), the Director decided against the applicant.

13.  The applicant appealed the Director’s Further Decision to the Board.  The Board decided not to hold an oral hearing since the nature and scope of non-refoulement protection afforded by BOR 2 had no relevance to the non-refoulement claim presented by the applicant.  By its decision dated 9 June 2017 (“the Board’s Second Decision”), the Board affirmed the Director’s Further Decision.  The Board was of the view that the materials initially provided by the applicant did not show that he would be at risk of harm from the government of Pakistan that would place his life at risk if refouled.  Nor was there any evidence of official acquiescence on the part of the national government of Pakistan in the ill-treatment alleged by the applicant. 

14.  The applicant filed his Form 86 on 12 July 2017 seeking leave to apply for judicial review against the Director’s two decisions and the Board’s Second Decision.  The applicant’s supporting affirmation filed on the same day contained the following grounds:

(1)  Lack of legal representation before the Board and in the determination of his claim under the BOR 2 ground resulting in violation of the high standard of fairness and a miscarriage of justice.

(2)  Lack of language assistance in the appeal to the Board and in the assessment of his claim under the BOR 2 ground.

(3)  The Director failed to give proper reasons for rejecting his claim under the BOR 2 ground.

(4)  The Board erred in deciding not to hold an oral hearing to determine his appeal.

15.  The Judge heard the leave application on 29 November 2017 and dismissed it on 23 March 2018.  The Judge held that it was not open to the applicant to seek to judicially review the Director’s First Decision, pointing out that the Board had refused to allow him to appeal against it out of time, and he had not sought to judicially review the Board’s refusal.

16.  In respect of the application for leave to judicially review the determination of the applicant’s claim under the BOR 2 ground, the Judge gave the following reasons for refusing leave at [9] to [16] of the CALL-1 Form:

“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. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.

11. The duty lawyer scheme will 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. This applicant at first admitted during the hearing that he did not approach the duty lawyer scheme for legal assistance in his appeal and then said he did but they did not give him a reason for refusing him.

12. The applicant’s second ground is also without merit. In it, he complains the duty lawyer service is saving costs and refused to translate his “Answer 35” of his non‑refoulement claim form despite his request for it. Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request. However, this applicant admitted during the hearing that he did not request the Duty Lawyer Service to provide him with a translation of his Answer 35.

13. Within that second ground, it states the Immigration Department invited the applicant to provide additional facts/information in a letter which was too technical for him to understand. During the hearing, I pointed it out to him that the affirmation contradicted his oral submission. In answer to this, the applicant reiterated that he did not receive this letter and did not say this in his affirmation; he did not know who wrote this. When his affirmation was read to him he explained that his friend prepared his affirmation and filed it so his friend may have added this. This is not a reasonable explanation for this contradiction. In paragraph 11 of his affirmation he confirms again that he received that letter. There is no merit in this misleading and inaccurate ground.

14. The third ground submits the Director gave no reason for rejecting his BOR 2 risk. Even if I considered the applicant could seek leave to apply for judicial review of the Director’s decision out of time and as well as the adjudicator’s decision, there is no merit in this ground. The adjudicator considered the provisions of BOR 2 and whether the applicant would be subject to any risk of his rights under BOR 2 being violated in light of the assessment of his claim as set out in the Director’s decision dated 2 June 2016. There is no merit in this ground.

15. The last ground submits the adjudicator was wrong to deny the applicant an oral hearing. He confirms that he did receive the Immigration Department’s letter but because of its complexity he did not reply in time. The adjudicator then made an assumption he had no additional material to submit which is a miscarriage of justice. The fact is there was no additional material submitted by the applicant and the adjudicator’s reasoning for not holding an oral hearing cannot be faulted. There is no merit in this ground.

Conclusion

16.  I do not find any ground that shows there was an error of law by 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.  In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave is refused.”

17.  In the Notice of Appeal filed on 28 March 2018, the applicant sought to rely on the following grounds of appeal:

(1)  Since the applicant has only one non-refoulement claim, he therefore waited until all the determinations were issued before he sought leave to apply for judicial review.

(2)  The applicant had not taken the high standard of fairness out of context by implying it means and includes the automatic provision of legal representation beyond what was provided by the Duty Lawyer Scheme.  The applicant’s case is that he has only one non-refoulement claim, thus although the Director made a separate assessment under the BOR 2 ground, it should be considered with his other claim.  Accordingly, he should be given the assistance of the Duty Lawyer Scheme.

18.  It is unclear from the applicant’s grounds of appeal whether he challenges the Judge’s decision that it was not open to him to seek leave to judicially review the Director’s First Decision.  In his written submission at [9], he seems to accept the Board’s decision refusing to allow him to appeal the Director’s First Decision when he said he would take the responsibility and consequence since he failed to lodge the appeal in 2016.  To remove any doubt, we would point out that Order 53 rule 4(1) of the Rules of the High Court (Cap. 4A) provides that: “An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”  It is therefore incorrect for the applicant to suggest that because he has only made one non-refoulement claim, he should wait until all the determinations were made before applying for leave to bring judicial review.

19.  It also follows that when the Board refused to allow the applicant to make a late appeal on 16 December 2016, if he was minded to challenge the Director’s First Decision and/or the Board’s decision, he should have applied for leave to bring judicial review within three months from the date of Board’s decision.  By the time he filed the present Form 86 in July 2017, he was more than three months out of time.  In the Form 86, the Board’s 16 December 2016 decision is not among the decisions in respect of which relief is sought.  Although the applicant seeks to challenge the Director’s First Decision, his supporting affirmation did not offer any explanation for the delay in seeking relief from the court.  In these circumstances, the Judge was correct to refuse leave to the applicant to judicially review the Director’s First Decision.        

20.  As to the applicant’s other argument that he should be afforded the service of the Duty Lawyer Scheme at the determination of the BOR 2 ground stage, this court has held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v. Director of Immigration HCAL 51 of 2007 prescribes that a claimant has 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, and Re Lopchan Subash [2018] HKCA 37.  The applicant had the benefit of legal representation in presenting his case to the Director and at the screening stage.  The applicant claimed he had approached the Duty Lawyer Scheme but was refused assistance.  As the Judge pointed out (at [11] in the CALL-1 Form), the decision of the Duty Lawyer Scheme whether to provide further legal assistance at the stage of BOR 2 assessment or appeal to the Board is taken on a case-by-case basis.  The applicant has not indicated what additional information or representation he could have submitted, but did not submit to the Director or the Board because he did not have further legal assistance.  We do not accept there is any unfairness arising from the non-availability of legal representation after the Director’s First Decision. The applicant has failed to demonstrate there was any unfairness in the process.  We do not accept that it is reasonably arguable to challenge the fairness of the process.

21.  Given that he did not respond to the invitation, the Director was entitled to proceed with the assessment based on the primary materials available, which were obtained through the screening interview and also the information provided by the applicant with the assistance of lawyer.  On the facts of the case, we agree with the Director and the Board that there is no additional basis for advancing a case on the BOR 2 risk, independent of the BOR 3 risk, the persecution risk, and the torture risk.

22.  Having considered the applicant’s skeleton argument as well as the materials before us, we can see no error of law or impropriety in the procedure in the process before the Director and the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and leave to apply for judicial review should be refused. We have accordingly dismissed the appeal.