RE KAYANI MUHAMMAD SALEEM

CACV 117/2018

[2018] HKCA 453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 117 OF 2018

(ON APPEAL FROM HCAL 867/2017)

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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 Bruno Chan on 20 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Pakistan. He entered Hong Kong illegally on or around 16 October 2009. He was arrested by the police on 9 December 2009. On 11 December 2009, he made a torture claim. According to the applicant, he was targeted by members of an opposing political party and the police in Pakistan because of his political affiliations.

2.  The Director decided against his claim on 1 September 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s Decision”).  By a Further Decision of 20 June 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 28 June 2017, the Board dismissed the appeals on 20 October 2017 (“the Board’s Decision”). The Board had no doubt that he was not a witness of truth and he simply presented a “learned account” rather than one which described events he genuinely experienced. In other words, he was found to be a blatant liar: see paragraphs 29 to 44 of the Board’s Decision.  

4.  The intended judicial review was in respect of the Director’s Decision and the Board’s Decision.  The Form 86 filed by the applicant on 10 November 2017 did not contain any ground for judicial review.

5.  In his affirmation dated 10 November 2017, the applicant relied on the following grounds for judicial review:

(a)  Lack of legal representation before the Board;

(b)  Lack of language assistance; 

(c)  The Director failed to inform the applicant whether his BOR 2 claim has been assessed.

6.  The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, he gave the following reasons in refusing leave at [13] to [18] of the CALL-1 Form dated 20 April 2018:

“ 13. For the applicant’s complain under ground (a) that he had no legal representation in his appeal before the Board, the Court of Appeal has clearly 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. The applicant already had the benefit of legal representation in presenting his case fully to the Director, and was also able to give evidence at the oral hearing of his appeal before the Board and answer questions put to him by the Adjudicator with any problem, and even now in his leave application for judicial review including an oral hearing before me, he never stated or outlined what further information or argument that he wished to make but unable to do so before the Board, and I do not find anything amiss arising from the non-availability of legal representation in the process of his appeal before the Board.

15. Regarding his complain under ground (b) of not being provided with a translation of his NCF to ensure that the basis of his claim had been properly translated, as his NCF was completed with legal assistance and his case was fully advanced before the Director whilst his appeal before the board was assisted by interpreter without any problem, in the absence of any specifics provided by the applicant, I find his complain wholly speculative and without merit.

16. His last ground is wholly without merit or basis, as he had clearly received the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk to which he responded in writing on 5 June 2017 by requesting for further time to submit additional evidence/documents, and that the Director replied on 8 June 2017 agreeing to allow him to do so by 15 June 2017. Yet up to the Director’s rejection of his claim on 20 June 2017 he did not do so, nor did he in his appeal before the Board including during the oral hearing on 28 June 2017 did he raise any issue about submitting additional facts or information regarding BOR 2 risk, nor for that matter even now in his leave application. Clearly both the Director and the Board did consider his claim under BOR 2 risk, and I do not see any merit at all in his complain under this ground.

17. In the premises and having considered 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, or any failure on their part to apply high standard of fairness in their consideration and assessment of the applicant’s claim.

18. 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 I accordingly refuse his leave application.”

7.  In the Notice of Appeal of 27 April 2018, the applicant repeated the grounds in his affirmation.  He also argued that as both Prakabar and FB (cited by the judge at [13] of the CALL-1 Form) were determined 10 years ago and before the implementation of the Unified Screening Mechanism (USM) by the Director, the principles in those cases are inapplicable to his case.

8.  In his skeleton submissions dated 26 June 2018, the applicant repeated the grounds in the Notice of Appeal.  He submitted that he had not been advised by the Duty Lawyer Service (“DLS”) on what information to provide in his claim under BOR 2.  His case should be referred to the DLS for advice on BOR 2 risk.

9.  The applicant agreed by a letter of 3 May 2018 that the appeal can be heard by two judges.

10.  Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations.

11.  In a number of cases (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), this Court has repeatedly held that the high standard of fairness does not mean that an applicant has an absolute right to free legal representation at all stage of the proceedings.  The implementation of USM and the additional assessment of BOR 2 risk after FB does not negate this proposition.

12.  As for the lack of language assistance, there was interpretation services at the hearing before the Board on 28 June 2017. Besides, the applicant apparently had access to some interpretation service (insofar as he needed the same) as he has no difficulty in understanding Court orders and directions.  He was able to produce legal documents in English. 

13.  The applicant argued that his case should be referred to the DLS for further advice on BOR 2 risk.  He complained that he did not even know what BOR 2 means.  However, the Further Decision of the Director provides a sufficient explanation of BOR 2.  Further, the applicant has not identified any additional information related to BOR 2 risk which may take his case further.  This ground has no merit.

14.  On the facts of the present case and given the finding on his total lack of credibility, we cannot see how the assessment of BOR 2 risk for the applicant would differ from the other risks assessed by the Board. The applicant already had the assistance of the Duty Lawyer in the preparation for such assessment by the Director.

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.