RE HUSSAIN WAJID

CAMP 117/2018

[2018] HKCA 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 117 OF 2018

(ON APPEAL FROM HCAL 543/2017)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 19 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 4 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 6 January 2016 and 27 March 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 16 May 2014 illegally and was arrested by the police on 21 May 2014.  After his arrest, he lodged a non-refoulement claim on 28 May 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 6 January 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 27 March 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 February 2017 and 25 May 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 4 August 2017 (“Board’s Decision”).

7.  At [22] and [26] of the Board’s Decision, the Board found that the applicant’s case was not credible.  At [19], the Board also found that the applicant did not have any particular skill or ability which would make him particularly useful as a member of a political party.  The assailants should thus have no motivation to try to locate the applicant upon his return to Pakistan.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 24 August 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 24 August 2017, the applicant advanced the following grounds for judicial review:

(1) lack of legal representation before TCAB/miscarriage of justice;

(2) lack of language assistance/procedural unfairness; and

(3) lack of a fair hearing.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the deputy judge refused to give leave for judicial review. The deputy judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 9 to 18 of the CALL-1 form:

“9. The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86. However, there are no grounds against the Director in his affirmation.

10. In any event, I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

11. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application as well as the submissions made by the applicant. The supporting affirmation lists the following as grounds for seeking leave:

(1) lack of legal representation before TCAB/miscarriage of justice;

(2) lack of language assistance/procedural unfairness; and

(3) lack of a fair hearing.

12. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. The court was reminded that a ‘high standard of fairness’ should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed his claim the applicant received no further free legal advice or assistance. The applicant submits this is a ‘violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice’.

13. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held ‘high standards of fairness’ must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases. Their assessment is on a case by case basis. There is no merit in this ground.

14. In the applicant’s second ground, he complains the duty lawyer service is saving costs and refused to translate his ‘NCF’ despite his request for it. Without it he cannot confirm whether or not the basis of his claim written in English is accurate which is why he asked for a translation. During the process, interviews and appeal, there does not seem to have been any reason to suspect his claim was not translated properly. If there had been issues, the applicant would have been able to particularise details here in his affirmation. Moreover, the applicant was able to make this application and draft this affirmation in English. During the oral hearing the applicant rather oddly said he could not recall if he did ask the duty lawyer scheme for a translation copy and then said he did not ask for it himself. He then said he thought they had provided him with a copy. I find no merit in this ground.

15. The applicant’s last ground is a complaint that he did not receive any correspondence from the Director about his BOR 2 risk claim. He was not given an opportunity to be heard or submit further information. However, there is no complaint of this nature to the adjudicator. The adjudicator invited him back for a second appeal hearing after the Director’s determination of the BOR 2 risk claim. The applicant had ample opportunity to be heard or submit further information if he had previously missed that opportunity.

16. In that last ground is a criticism that the applicant was not informed the Director’s representative was excused from the oral appeal. Again, there is no complaint of this nature to the adjudicator at the appeal hearing. He accuses the Director of failing to prepare for the appeal but the appeal bundle given to the applicant was prepared by the Director and would have contained the submissions of the Director. There is no merit this ground.

17. I do not find any ground that shows there was an error of law by 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. The same applies to the decision of the Director.

18. 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.”

11.  According to the court record, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 19 June 2018.

Application for extension of time to appeal and grounds for appeal

12.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 17 July 2018, he applied for an extension of time to appeal.  He explained that he was late in making an appeal because he was not aware of the time limit.  He was only informed of the time limit a few days before 17 July 2018 when the deadline had passed. 

13.  In his affirmation dated 24 May 2018, the applicant advanced the following grounds of appeal, which can be summarised as follows:

(1) The judge erred in holding that the applicant wrongly named the Director as a respondent ([9] of CALL-1 Form); and

(2) The lack of legal representation affected the applicant’s claim based on BOR2 risk before the Director.

14.  In his skeleton submissions dated 6 August 2018, the applicant repeated his arguments in the affirmation dated 17 July 2018.  He further submitted that the lack of language and legal assistance before the judge, the Board and the Director was a violation of the high standard of fairness, and that it was unfair to the applicant that the CALL-1 Form was not translated for him.

Discussion

15.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

16.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  Ignorance of the law on the part of the applicant is not a reasonable excuse for the delay.

17.  We nonetheless go on to consider the merits of the intended appeal.  As for the ground based on the lack of legal assistance, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

18.  As for the lack of language assistance, we note that the applicant had no problem in following the court’s directions.  He was able to provide court documents in English.  He identified the alleged errors committed by the judge and made submissions on those alleged errors.  It is clear that either he is reasonably proficient in English or has access to language assistance.  We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance.

19.  Lastly, we note that the Board had considered the applicant’s claim based on BOR2 risk ([15] Board’s Decision) and affirmed the Further Decision ([26] Board’s Decision). The judge was right, in those circumstances, to conclude that the Further Decision by the Director had been overtaken by the Board’s Decision and that it was inappropriate to name the Director as a respondent in the Form 86.

20.  For these reasons, we do not see any prospect of success in the intended appeal. We will not grant extension of time for a hopeless appeal.  The summons of 17 July 2018 is dismissed accordingly.

21.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.