RE MOHAMMED HASIB UDDIN

CACV 440/2018

[2019] HKCA 25

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 440 OF 2018

(ON APPEAL FROM HCAL 1157/2017)

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J U D G M E N T

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

Introduction

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

Background

2.  The applicant is a national of India.  He first came to Hong Kong on 1 December 2013 and was permitted to remain as a visitor for 14 days.  He departed Hong Kong on 10 December 2013 before the expiry of his permission to remain.  He arrived in Hong Kong again on 1 March 2014 and was allowed to remain until 15 March 2014. This time he did not depart despite the expiry of his permission to remain, and overstayed illegally.  He surrendered to the Immigration Department on 18 March 2014 and raised a non-refoulement claim on the same date.  A removal order was issued against him and served on him on 24 April 2014.  He declared he did not intend to appeal and on 28 April 2014, his non-refoulement claim application was considered not made.  He later submitted a number of updated written representations and, his claim was subsequently considered to be made on 10 May 2014.

3.  The applicant’s claim was based on the fear that, if returned, he would be harmed or even killed by the family members of his girlfriend, as well as his creditors.  The facts of this case were summarized by the Judge in [1] – [13] of the CALL-1 Form dated 3 September 2018 (published as [2018] HKCFI 1991).

4.  The Director of Immigration (“the Director”) assessed the applicant’s claim on how likely the applicant’s feared treatment would materialize and on all applicable grounds, namely, the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3] and the torture risk[4], and determined the risks against the applicant.  The applicant’s claim was rejected on 20 March 2017.

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/the adjudicator of the Non-refoulement Claims Petition Office (“the Board”).  An oral hearing was held on 3 November 2017, during which the applicant answered questions put to him by the Board and clarified matters in his case.  After hearing the applicant, the Board found that the applicant’s evidence was wholly unreliable with glaring contradictions in his letters to the Director, his Non-refoulement Claim Form (“NCF”), and his interview, as well as his evidence given during the hearing.  The applicant also failed to explain why he did not lodge a torture claim during his first visit to Hong Kong.  The Board was also of the view that the core elements of the applicant’s claim about threats and torture were unreliable in any event. The applicant's appeal was dismissed on 14 December 2017.

The Judge’s decision

6.  On 29 December 2017, the applicant applied to the court for leave to apply for judicial review. According to the Form 86, the intended judicial review was against both decisions of the Director and the Board.  While the form 86 contained no grounds for seeking relief, the applicant set out the following grounds in his affirmation in support of the application:

(1) The applicant was not given any legal representation throughout his appeal/petition with the Board, which amounted to a violation of the high standards of fairness and miscarriage of justice;

(2) The applicant was not given any translation of his NCF and could not ascertain whether the interpreter had correctly translated the basis of his claim;

(3) The Director had wrongfully exercised his case management power in weighing contradictory country of origin information (“COI”); and

(4) The Board wrongly excused the attendance of the director in the appeal hearing before it.

7.  Upon the request of the applicant, an oral hearing was arranged to be heard on 19 June 2018.  After hearing the applicant, the Judge refused to grant leave for him to apply for judicial review.  First of all, the Judge pointed out in [19] of the CALL-1 Form that the Director’s decision was not amenable to judicial review, referring to the decision of this Court (Lam VP and McWalters JA) in Re Moshsin Ali [2018] HKCA 549.  The Judge’s reasons in refusing leave were set out at [31] to [40] of the CALL-1 Form:

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

32. 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’.

Lack of legal representation

33. The Applicant complained he was not provided with legal assistance after the Director's decision dated 20 March 2017.

34. 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 [L]awyer 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 stage of the screening process.

Lack of language assistance

35. The Applicant complained he was not provided with sufficient interpretation/translation assistance.

36. In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to provide him with interpretation/translation assistance. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance. His suspicion that the interpreter might not have translated the basis of his claim properly in the non-refoulement claim form (“NCF”) was mere speculation. That cannot be a proper ground of complaint.

Wrongful exercise of case management power

37. The Applicant complained the Director failed to explain how he balanced the COI he had considered for and against his claim and why the Director concluded state protection was available in his case.

38. As pointed out in paragraph 19 above, the Director's decision, within the existing administrative structure, is not susceptible to judicial review once an appeal to the Board was pursued by the Applicant. In any event, the Director had stated clearly what and how he had considered the issue of reasonable state protection.

Lack of fair hearing

39. The Applicant complained the Director was excused from the appeal hearing on 3 November 2017. He failed to show how the Director’s absence would prejudice his appeal. That cannot be a proper ground of complaint.

40. In my judgement, the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints. The Adjudicator had engaged in joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed he was acquainted with the facts and applied the law correctly. He had considered the Applicant's claim carefully. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.”

The appeal

8.  On 7 September 2018, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

(a) The Judge erred in holding that the decision of the Director was not amenable to judicial review and in taking the case Re Moshsin Ali (supra) as a precedent because the case contained “jurisdictional error” (sic) and contradicted the judicial independence in Hong Kong;

(b) The Judge erred in taking the view that his concern regarding the misinterpretation by the interpreter of his NCF was mere speculative;

(c) The Judge erred in speculating that he might find someone to provide him with interpretation/translation assistance; and

(d) It was unfair not to provide him with legal assistance.

9.  By a letter dated 7 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 Argument on 29 November 2018.  In it, the applicant repeated what was stated in the notice of appeal.

11.  We heard the appeal on 3 January 2018.

Discussion

12.  Clearly, the Judge has applied the correct legal principle in ruling that upon decision by the Board on appeal from the Director’s decision, a judicial review should focus on the Board’s decision.  Indeed, in Re Moshsin Ali (supra) at [31] – [45], this Court has explained in detail the rationale for this proposition.  In this appeal, the applicant apparently misunderstands the analysis set out in that judgment.  There is no question of the Court not exercising its supervisory jurisdiction over the administrative decision of the Director.  The correct analysis is that the Court exercised such power in respect of the relevant administrative decision, viz the Board’s decision which had overtaken the decision by the Immigration Officer.  There is no substance in this ground of appeal.

13.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection because of the unreliability of his evidence.  The Judge, after rigorous examination and anxious scrutiny, did not find any public law grounds that warrant the court’s interference with the Board’s decision. 

14.  We are of the firm view that none of the grounds advanced by the applicant in the notice of appeal constitutes viable ground to reverse the Judge’s decision.  There is no evidential basis for the applicant to suggest that the interpreter assisting him in completing the NCF did not provide an accurate translation to him.  In our view, the Judge’s observations in this respect are fully justified.

15.  The complaint regarding the Judge’s comment about the availability of interpretation/translation assistance to the applicant is totally unmeritorious.  It is clear that the Judge’s comment was based on what the applicant told him in court.  Given further the facts that all the court documents prepared by the applicant (including the notice of appeal and his Skeleton Argument) were written in English, the Judge was justified in taking the view that the applicant had exaggerated his problem of getting language assistance. 

16.  It was right for the Judge to observe that the high standards of fairness do not prescribe that a non-refoulement claimant has absolute right of free legal representation at all stages of the process.  As the applicant had already had legal assistance in preparing his case before the Director, it is not reasonably arguable to challenge the fairness of the process on the ground of the lack of legal assistance before the Board.

17.  Having considered the materials available before us, we cannot find any ground that justifies a reversal of the Judge’s decision.  We agree with the Judge that leave to apply for judicial review should be refused.

18.  For these reasons, we dismiss the appeal.