RE ZAMAN MUHAMMAD

CACV 150/2018

[2018] HKCA 486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2018

(ON APPEAL FROM HCAL 905 OF 2017)

____________________

______________

JUDGMENT

______________

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

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 4 May 2018 refusing leave to apply for judicial review.

2.  The applicant is a Pakistani national.  He entered Hong Kong illegally on 17 January 2016 and was arrested by the police on the same date.  He lodged a non-refoulement claim on 19 January 2016.  His claim was based on the fear that, if he returned to Pakistan, he would be ill-treated, or even killed, by the supporters of the Pakistan People’s Party (“PPP”) because he, being a supporter of their political rival the Pakistan Muslim League (Noon) (“PML(N)”), refused to join their party. 

3.  By a notice of decision dated 14 February 2017, the Director of Immigration rejected the applicant’s claim.  The director did not accept there was any real risk or chance that the applicant would be subjected to any serious harm or ill-treatment at the hands of the PPP supporters upon his return to Pakistan.  The director also considered that the availability of state protection and the viability of internal relocation would lower or negate the perceived risk of harm.  The decision covered the BOR 3 risk[1], the BOR 2 risk[2], the persecution risk[3], and the torture risk[4].

4.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 2 November 2017.  The applicant chose not to give any evidence at the hearing.  The board found that the applicant was not ever associated with PPP or the PML(N), apart from possibly voting for either party at some point.  The board also found that the applicant had not been threatened or harmed by either of these groups.  The board was not satisfied that there were substantial grounds for believing that the applicant would be in danger of ill-treatments from the members of PPP if he returned to Pakistan.  The board dismissed the appeal on 9 November 2017.

5.  The intended application for judicial review was in respect of both the decisions of the director and the board.  While the form 86 filed on 17 November 2017 did not contain any grounds for seeking relief, the applicant set out his grounds in the supporting affirmation made on the same date as follows:

 (a) the lack of legal representation in that the applicant had not been given legal representation after the director’s decision;

 (b) the lack of language assistance, whereby his rights were jeopardized;

 (c) the lack of fair hearing in that the director was excused from attending the hearing before the board; and

 (d) the director’s wrongful exercise of case management power in dealing with the country of origin information (“COI”).

6.  Upon the request of the applicant, an oral hearing was held on 12 April 2018.  On 4 May 2018, the deputy judge refused to grant leave for the applicant to apply for judicial review.  The reasons for the refusal are set out at paragraphs 10 to 16 of the CALL-1 form as follows:

“ 10. For his complaint under ground (1) of no legal representation in his appeal before the Board, the Court of Appeal has 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.

11. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify in his appeal before the Board and to answer questions put to him by the adjudicator for the Board without any difficulty. Even now in his leave application for judicial review including attending an oral hearing before me, he merely asked for more time to produce further information from his home country but without giving any details or specifics as to what information or how long it would take from Pakistan, and for which it was refused. In the premises I do not find anything amiss arising from the non-availability of legal representation in the process of his appeal before the Board.

12. Regarding his complaint in ground (2) of not being provided with a translation of his NCF and hence no means for him to find out if his claim had been properly translated by the interpreter, it is clear that the NCF was completed with legal assistance and representation from the Duty Lawyer Service and on his instruction, and in the absence of any specifics this complaint of the applicant is simply speculative and without any merit.

13. As for ground (3) over the non-attendance of the Director athis appeal hearing, there is simply no rule requiring such attendance, and I do not see how the applicant could have been prejudiced by the Director’s absence in his appeal which is after all a rehearing of his claim by the Board. I do not see any basis at all in this complaint of the applicant.

14. As for his last complaint under ground (4), the applicant has not provided any particulars or specifics to show how and where did the adjudicator get it wrong from the COI in her assessment of state protection available in Pakistan, and having examined those listed and referred to by both the Director and the Board, I do not find any merit in this complaint of the applicant either.

15. 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, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospectof success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

7.  The applicant filed the notice of appeal on 10 May 2018, in which it was contended that the deputy judge erred in accepting that the failure of the Duty Lawyer Scheme to provide a translation of his Non-Refoulement Claim Form (“NCF”) was not in breach of the high standards of fairness.  The applicant also contended that the order made by the board should be read to him through an interpreter, so that he could be aware of his rights and the contents of the observations.

8.  By a letter dated 18 May 2018, the applicant agreed that this appeal be heard by a two-judge court.

9.  On 13 June 2018, the Registrar of Civil Appeals gave directions that the applicant should lodge his skeleton argument not less than 28 days before the hearing of the appeal.  It was also directed that, in the event the applicant failed to lodge skeleton argument as directed, the applicant should be deemed to waive his right for an oral hearing and to elect to have the appeal be disposed on paper.  The applicant in fact lodged his skeleton on 9 July 2018, which was less than 28 days before the hearing.  Notwithstanding the non-compliance, we are exceptionally prepared to take the applicant’s skeleton argument into account.  In accordance with the direction of Cheung CJHC, the oral hearing was held as scheduled.

10.  In the skeleton argument, the applicant reiterated the grounds as set out in the notice of appeal.

11.  We heard the appeal on 2 August 2018.

12.  It is clear from the notice of appeal and the skeleton argument that the applicant focuses in this appeal on the ground of the lack of language assistance, and that none of the other grounds for seeking relief in the intended application for judicial review are relied upon. 

13.  We do not find the ground relating to the lack of language assistance to be reasonably arguable.  First, in our view, it is plainly wrong to suggest that, as a general rule, the high standards of fairness as laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 entail an interpretation service that is available free-of-charge at any time as a non-refoulement claimant may desire. 

14.  Secondly, as the deputy judge rightly observed, the NCF was completed with legal assistance and representation under the Duty Lawyer Scheme on the applicant’s instructions.

15.  Thirdly, we also note that the NCF was dated 28 April 2016.  The applicant did not make any complaint either to the director or to the board in respect of the absence of the translation of the form.  It is not his case that it was the government’s policy not to provide any translation of the NCF to non-refoulement claimants.  The applicant only complains that the Duty Lawyer Service had wrongfully exercised its discretion not to provide a translation to the applicant on the ground of “saving costs”.  However, complaint was made about this, and no application was made to the court challenging this decision of the Duty Lawyer Service.  Furthermore, if he chose to do so, he could have clarified any mistranslation in the NCF during the oral hearing before the board, where he was presumably assisted by an interpreter.  Yet he refused to give any evidence despite being invited to do so by the board.  Instead, he waited until his application for leave to judicial review in November 2017 to make this complaint.  It is not unreasonable to question whether this complaint is genuine.

16.  Fourthly, we also agree with the deputy judge’s observation that the applicant had never, not even in this appeal, specified any mistranslation in the NCF that affected his rights adversely.

17.  Finally, contrary to what was stated in paragraph 7 of the skeleton argument, we do not find it speculative to suggest that the applicant could understand the English language, or get access to language assistance if he needed.  We note that the court documents in the proceedings, including the form 86, the supporting affirmation, the notice of appeal and the skeleton argument were written in English.  This indicates that the applicant can understand the English language, or can get such language assistance as he may need.  We also note that the affirmation made by him in support of his application for leave to judicial review contained an interpretation clause, which suggests that he is able to get access to the services of an interpreter. 

18.  In these circumstances, we do not accept that it is reasonably arguable to challenge the fairness of the process on the ground of the absence of translation of the NCF.

19.  We are also satisfied that the deputy judge had adequately dealt with the grounds advanced by the applicant in support of the application for leave to judicial review and applied the correct legal principles. We endorse the deputy judge’s conclusion that none of the grounds set out in the applicant’s supporting affirmation merit leave to apply for judicial review. 

20.  Having considered the applicant’s skeleton argument as well as the material before us, we find that the deputy judge’s observations are justified.  We see no error 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 the non-refoulement claim is a matter for the director and the board, not the court.  We agree with the deputy judge that leave to apply for judicial review should be refused.

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