RE HAIDER SUFYAN

CACV 447/2018

[2019] HKCA 26

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 447 OF 2018

(ON APPEAL FROM HCAL 122/2018)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

Hon B Chu J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the Decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 3 September 2018 refusing him leave to apply for judicial review.

Background

2.  The applicant is a national of Pakistan.  He had raised a refuge application on 23 May 2007 after coming to Hong Kong earlier, but withdrew it on 4 March 2013.  He voluntarily returned to Pakistan in April 2013.  He illegally entered Hong Kong again on 2 April 2014 and was arrested by the police on the same day.  On 4 April 2014, he raised a claim for non-refoulement protection and was later released on recognizance on 17 April 2014.  He subsequently filed a Supplementary Claim Form (SCF) on 15 February 2016.  On 18 April 2016, the Director of Immigration (“the Director”) decided to allow the applicant to make a subsequent claim on his torture risk, and informed him that his claim would be assessed on all applicable grounds, including the torture risk.  He later filed the completed Non-refoulement Claim Form (NCF) on 3 May 2016.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the family members of a Mr Usman because of the love affair between the applicant’s cousin and Mr Usman’s sister.  The factual background of this case was summarized in [1] – [14] of the CALL-1 Form dated 3 September 2018 (published as [2018] HKCFI 1994).

4.  By two notices of decision dated 25 May 2016 and 15 September 2017, the Director rejected the applicant’s claim for non-refoulement protection in Hong Kong.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk, and the latter the BOR 2 risk[3].

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”).  An oral hearing was held on 24 October 2017, during which the applicant answered questions put by the Board.  After hearing the applicant, the Board found no evidence that the applicant was the target of the family of Mr Usman.  The Board also considered that state protection was available to the applicant and internal relocation was a viable option for him.  The Board was not satisfied that there were substantial grounds for believing that the applicant would be subjected to ill-treatment if he returned to Pakistan.  The applicant’s appeal/petition was dismissed on 29 December 2017.

The Judge’s decision

6.  The applicant applied to the court for leave to apply for judicial review.  According to the Form 86, the intended applicant for judicial review was against the decisions of the Director and the Board.  The grounds for seeking relief were set out in the applicant’s affirmation dated 26 January 2018 as follows:

(a) The lack of legal representation for the Director’s assessment of his BOR 2 risk and the appeal before the Board rendered the process unfair and should be considered as a miscarriage of justice;

(b) The applicant was not given a translated copy of his Non-refoulement Claim Form (“NCF”), and hence he was not able to ascertain the accuracy of the form and thereby his rights were jeopardized;

(c) The applicant did not receive the letter from the Director inviting him to submit additional facts in relation to his BOR 2 risk;

(d) The Director failed to give sufficient reasons for the rejection of his claim concerning his BOR 2 risk, and the Board failed to give sufficient weight to the country of origin information (“COI”) regarding the malpractice of the police in Pakistan, as well as to give proper explanation in rejecting his claim; and

(e) It was unfair for excusing the Director from attending the hearing before the Board.

7.  An oral hearing was held on 20 June 2018.  After hearing the applicant and giving due consideration to the decisions of the Director and the Board, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons in refusing leave were set out in [37] – [51] of the CALL-1 Form as follows:

“37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

39. The Applicant complained he had not been provided with legal assistance for his appeal to the Board.

40. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. There is no evidence the Applicant had re-applied for legal assistance from the Duty lawyer Service after the Director's decision. He also cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

41. The Applicant complained he was not given a translation copy of the non-refoulement form (“NCF”). He therefore could not find out if the interpreter had been translating the basis of his claim properly. He said he did not understand the documents sent to him by the Director because there was no translation.

42. In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and to deal with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.

43. Even though the Applicant had a friend who could provide him with language assistance, the Applicant by now still failed to show there was indeed any mistranslation/ misinterpretation in the NCF. His complaint has no substance at all.

44. The Applicant said he had not received the Director's letter dated 21 June 2017, which invited him to submit additional facts for the consideration of BOR2 risk. He also accused the Director failed to provide proper explanation on the BOR2 risk decision.

45. The Director's letter dated 21 June 2017 was sent to the Applicant. There was no evidence of undelivered or misplaced post. If the Applicant had not received that letter as already sent out by the Director, it was beyond the Director’s control. The Applicant, however, failed to show this court what he would or could have submitted on the BOR2 issue. In fact, he confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim. Thus Applicant had not been prejudiced even if he really had not received that letter.

46. The Applicant said the interpreter in the appeal hearing did not explain to him properly that there was a decision on BOR2 risk and how that decision was reached. There was simply no evidence of such bare assertion from the Applicant.

47. The Applicant accused the Director failed to provide proper explanation for the BOR2 risk decision.

48. The Director's further decision dated 15 September 2017 on BOR2 risk must be read in conjunction with the Director's previous decision dated 25 May 2016, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 15 September 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including the right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 25 May 2016.

49. The Applicant complained the Adjudicator did not give proper explanation for refusing his non-refoulement claim. That is not true. The Adjudicator’s decision dated 29 December 2017 was clear enough in all aspects, including the issues of reasonable state protection and internal relocation in paras 75-82 and paras 83-85 thereof respectively.

50. The Applicant criticised the Director for not attending the appeal hearing before the Adjudicator on 24 October 2017. However, the Applicant failed to show how the Director’s excused absence would prejudice his appeal.

51. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied she had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts and applied the law correctly. She had considered the Applicant's case carefully. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.” (footnote omitted)

The appeal

8.  The applicant filed a notice of appeal on 10 September 2018.  In it, the applicant advanced the following grounds of appeal:

(1) The decision concerning his BOR 2 risk was not properly explained or translated to him;

(2) It was procedurally unfair for the Board to hold an oral hearing prior to the assessment of the applicant’s BOR 2 risk;

(3) The Judge erred in commenting that the applicant failed to show that there was any misinterpretation in his NCF and failed to appreciate that, without legal assistance, the applicant was not able to provide any specifics or particulars about the misinterpretations; and

(4) The Judge’s finding that the applicant could find someone to provide him with interpretation/translation assistance was mere speculation.

9.  By a letter dated 24 September 2018, the applicant gave consent that this appeal be heard before a two-judge court.

10.  In compliance with the directions of the court, the applicant lodged his Skeleton Submissions on 30 November 2018.  The applicant submitted therein that:

(1) It was unfair not to provide the applicant with legal representation for the assessment of his BOR 2 risk, whereas other claimants were provided with legal representation for the same assessment;

(2) The Board failed to make its own finding in the applicant’s case;

(3) The applicant reiterated that he did not submit additional information to support his claim based on the BOR 2 risk because he could not understand the significant of the invitation letter; and

(4) The applicant’s ability to seek help in his application for leave to apply judicial review did not necessarily mean that he could seek help at an earlier stage.

11.  We heard the appeal on 3 January 2018.

Discussion

12.  In Re Moshsin Ali [2018] HKCA 549, this Court held that the decision of the Director is not susceptible to judicial review once a non-refoulement claim has pursued an appeal to the Board.  Since the applicant had already appealed to the Board against the decisions of the Director, the court would only focus on the decision of the Board in the application for leave to apply for judicial review.

13.  In the present case, the Board rejected the applicant’s case on the basis that the applicant failed to demonstrate any substantial grounds for believing that he would be subjected to ill-treatment if refouled.  It was also assessed that the perceived risk of harm (if any) would be negated/lowered by the availability of state protection and the viability of internal relocation.  The Judge, after rigorous examination and anxious scrutiny, did not find any public law grounds that merit leave to apply for judicial review against the Board’s decision.

14.  As this Court has explained in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Litoun Mounsy [2018] HKCA 537 at [11]; and Re Guna Kumari Magar [2018] HKCA 842 at [12], the assessment of evidence, COI materials, risk of harm, availability of state protection, and viability of internal relocation are primarily within the province of the Board (or the Director), and the court will not intervene by way of judicial review unless there are legal errors, or procedural unfairness or irrationality in such assessment.  In appeal, this Court will only examine the decision of the Judge in light of the grounds advanced by the applicant. 

15.  Having considered the materials before us, as well as the applicant’s Skeleton Submissions, we are of the view that none of the matters stated in these documents constitute viable grounds of appeal that warrant a reversal of the Judge’s decision.

16.  We endorse the observations of the Judge that the applicant had exaggerated his problem of getting interpretation/translation assistance and handing English documents.  By his own admission, the applicant was able to elicit assistance in preparing the court documents for his application for leave to apply for judicial review: see [35] of the CALL-1 Form.  It is wrong to suggest that the Judge’s observation in [42] of the CALL-1 Form was a mere speculation.  In our view, there is no merit in the grounds set out in [8(4)], [10(3)] and [10(4)] above.

17.  We do not accept as a general proposition that the high standards of fairness as required by the law would entail an interpretation service that is available free-of-charge at any time as a non-refoulement claimant may desire: see Re Zaman Muhammad [2018] HKCA 486 at [13].  The ground set out in [8(1)] above is also devoid of merits.

18.  In absence of any particulars, there is no evidential basis for the court to accept that the translated NCF contained misinterpretation that would render the process unfair.  We are of the view that the Judge’s observation in [43] of the CALL-1 Form is entirely correct.  There is no merit in the ground set out in [8(3)] above.

19.  The Judge’s analysis in [40] of the CALL-1 Form regarding the applicant’s complaint about the lack of legal representation is in line with the authorities laid down by this Court: 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.  We do not find anything amiss in it.  Further, the allegation regarding different treatment by the Duty Lawyer Service among non-refoulement claimants had not been advanced before the Judge, and there is no evidential basis for us to accept the same.  In our view, the ground set out in [10(1)] is not reasonably arguable.

20.  The applicant also complained in this appeal regarding the hearing before the Board was held prior to the determination of his BOR 2 risk and the Board’s failure to make a new finding of its own.  Apart from the fact that these grounds had not been canvassed in the Court of First Instance, they are factually incorrect.  It is clear that the hearing was held after the Director’s assessment of the applicant’s BOR 2 risk and the Board did make an independent assessment of the applicant’s claim: see [53] – [85] of the Board’s decision.  We reject the grounds set out in [8(2)] and [10(2)] above. 

21.  We agree with the Judge that leave to apply for judicial review should be refused.

22.  For these reasons, we dismiss the appeal.