RE MASOOM PARVEZ

CACV 261/2017

[2018] HKCA 163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 261 OF 2017

(ON APPEAL FROM HCAL NO 266 OF 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 Woodcock on 10 November 2017 refusing leave to the applicant to apply for judicial review. The applicant came from India. He arrived in Hong Kong on 4 September 2014 and was arrested immediately at the airport for drug trafficking. He was convicted by and sentenced to 3 years and 2 months’ imprisonment. He completed his sentence and was released on 7 November 2016. On 8 April 2016 he lodged a non-refoulement claim. The claim was based on alleged threat of harm from his creditor who had lent him Indian Rupees 1 million. He had only partly settled the debt when he was arrested in Hong Kong. Due to the interruption of his repayment, the creditor uttered verbal threats (to his family) to kill him upon his return to India.

2.  The Director decided against the claim on 9 November 2016.  The decision covered BOR 2 risk, BOR 3 risk, persecution risk and torture risk. 

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 8 May 2017, the Board dismissed the appeal on 23 May 2017.

4.  The intended judicial review was in respect of the decision of the Torture Claims Appeal Board.  The Form 86 filed by the applicant on 5 June 2017 did not contain any ground for seeking relief.  In his affirmation of 21 June 2017, he simply stated as follows:

“ The decision taken by the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office forms. Application for seeking non-refoulement protection in Hong Kong is not correct. The Immigration Department have failed to consider the ground realities in India before reaching at this decision.”

5.  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, she gave the following reasons in refusing leave at [12] to [15] in the CALL-1 Form:

“12. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully, logically and with caution. He applied the correct burden and standard of proof. The same applies to the Director. The applicant had nothing to add or to say during the hearing for leave except that the situation in India, in reality is not good, for example, people can be killed over a cow. This was in response to my request to him to expand on his affirmation because it contained no grounds to support his application.

13. His affirmation only stated the adjudicator and/or the Immigration Department had failed to consider the “ground realities” in India before reaching a decision. I was satisfied the Director did refer to relevant, ample, objective, up-to-date and of international standard Country of Origin information and material. The adjudicator having found the applicant was not a genuine claimant did not need to go into such information or material in assessing his claim.

14. I found there was no error of law by either the Director or 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.

15. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

6.  In the notice of appeal of 17 November 2017, the applicant advanced the following grounds of appeal,

“ (a) the learned Judge had failed to consider all applicable grounds of Non-refoulement and in particular Non-refoulement on the grounds of risks of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance;

(b) the learned Judge was wrong in accepting the adjudicator’s finding that “the only fact established is that the applicant is an Indian male, he faces no risk of any harm at all” to conclude that the persecution risk failed;

(c) the findings by the learned Judge that the adjudicator’s decision to be without fault were irrational;

(d) I was deprived of legal representation, even though I informed the learned Judge about my appeal against The Director of Legal Aid’s decision to reject my application for Legal aid application of Judicial Review.  I am of the view that my Legal Aid application will be approved because my case has merits and I require proper legal support for handling a very complicated matter of Judicial Review.”

7.  Notwithstanding the direction from the Registrar of Civil Appeals on 14 December 2017, the applicant failed to lodge any written submissions in support of his appeal.

8.  We heard the appeal on 15 March 2018.

9.  Though the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision maker is still the Board.  The court should not usurp the role of the Board.  Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusion there is no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatments which meet the high threshold as required by law, see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

10.  In view of the reasons given by the Board on the assessment of the evidence of the applicant set out at [22] to [38] of the Decision, we conclude that the Board was plainly right in rejecting his evidence and in finding that he was not a witness of truth and his account was simply a fabrication.

11.  As the judge correctly pointed out at [12] of the CALL-1 Form, the applicant did not produce any material to support his bald and vague assertion regarding the “ground realities” in India.  

12.  As regards the challenge based on lack of legal representation, 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 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.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration by the immigration officer when he advanced his non-refoulement claim.

13.  Legal aid is processed on the basis of a merit test.  In light of the obvious lack of merit in the applicant’s case, the Director of Legal Aid was entitled to refuse legal aid.  The judge was entitled to take the view that there should not be further delay in hearing the application notwithstanding that the legal aid appeal had not been heard.

14.  At the hearing before us, the applicant told us he did not attend the hearing of his legal aid appeal on 1 March 2018. He initially said he was hospitalized on that date. However, upon the examination of the receipt he shown to us to support his medical condition (which only showed medical prescription being given by a hospital on 3 March 2018), he said he did not attend the legal aid appeal due to drowsiness after taking some medication. We do not accept he had good reason for missing the appointment for legal aid appeal. If he attached as much importance to legal representation as he professed before us, we do not think he would have failed to attend such hearing.       

15.  Having considered the submissions of the applicant in light of the materials before us, we found the judge’s observations to be justified.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

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