RE MUNIR QAISER

CACV 10/2018

[2018] HKCA 341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 10 OF 2018

(ON APPEAL FROM HCAL NO 93 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 the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 5 January 2018 refusing him leave to apply for judicial review. The applicant is a Pakistani national. He claimed that he entered Hong Kong illegally not long before he was arrested by the police on 3 December 2013. He lodged his non-refoulement claim on 19 December 2013. His claim was based on his fear of harm, or even being killed, by his paternal uncle because of a land dispute among family.

2.  By the Notice of Decision dated 7 December 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director assessed that the alleged ill-treatment neither attained a minimum level of severity nor was as real, present and imminent as the applicant claimed.  It was also considered that the availability of state protection and the possibility of relocation would lower or negate the perceived risk. 

3.  The Director had also assessed the applicant’s BOR 2 risk.  A Notice of Further Decision was issued on 28 October 2016, whereby the Director decided against the applicant.

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions.  After an oral hearing on 17 November 2016, the Board dismissed the appeal on 14 February 2017.

5.  The intended judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed by the applicant on 23 March 2017 did not contain any grounds for judicial review.  In his affirmation filed on the same day, the applicant sought to rely on the following grounds:

(1)  He was not given legal representation for the appeal before the Board, such that the high standards of fairness were not met; and

(2)  The Board erred in placing undue weight on matters pertaining to his credibility.

6.  In the CALL-1 Form, after summarizing the background of the case and giving consideration to the decisions of the Board, the Judge gave her reasons in refusing leave in [11] – [17]:

“ 11. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and adjudicator’s decisions to be without fault. They analysed the material, claims and evidence carefully. The adjudicator’s analysis of the applicant’s evidence was thorough and his finding he was not a credible witness entirely substantiated. The applicant’s complaints against them and the procedure undertaken are not made out. He seeks to judicial review both decision-makers but the two grounds relate only to the TCAB decision.

12. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition. 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.

14. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis. Here, we have no information if the applicant did approach the scheme to assist with his appeal and if they refused him, why they refused him. This ground is not reasonably arguable.

15. The applicant’s second ground complains of the adjudicator placing undue weight on credibility. He complains it is unfair to draw an adverse inference because he did not raise a torture claim when he was in Bangladesh, Kenya or the United Arab Emirates. The applicant says he did not know that he could lodge a claim in those countries just like he did not know he could lodge a claim in Hong Kong. The adjudicator disbelieved him and found it affected his credibility. I would not interfere with that finding. It is not unreasonable. There is no merit in this ground.

16. I do not find any ground that shows there was an error of law in the decisions nor do I see any evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17. 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.”

7.  The applicant lodged the Notice of Appeal on 12 January 2018.  The grounds of appeal concern the Judge’s observation on the way the Director dealt with his credibility.

“ 1. The learned judge wrongly exercised her discretion in concluding that there was no evidence of procedural unfairness or a failure to adhere to a high standard of fairness.

2. The fact that the judge would not interfere with that finding [ie para 15 of the Judge’s reasons] implies that the Judge agrees that the Adjudicator made the correct ruling and that I am not a credible person. Once this has been established none of my basis of claim will be a matter for the court to determine any more. This is procedurally unfair to my case.

3. Having regard to the above circumstances, I seek an order that the order set down by Deputy High Court Judge Woodcock be set aside.”

8.  The applicant lodged his Skeleton Argument on 11 May 2018.  In the Skeleton Argument, the applicant set out the background of the case and reiterated the grounds of appeal.  It was also stated that the “authorities” (presumably referring to the Director, the Board and the Judge) did not give due regard to his safety upon return to Pakistan.

9.  As set out in the Notice of Appeal, the applicant’s focus in this appeal is on the Judge’s refusal to interfere with the Board’s finding on his credibility. We have recently said in Re Lakhwinder Singh [2018] HKCA 246 at [13] that:

“ Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in absence of any legal error.”

Given no error on public law grounds was found in the Board’s decision, the Judge had no basis to interfere with the Board’s finding on credibility. 

10.  We do not read [15] of the judgment as holding that a court can never interfere with the finding by the Board.  That paragraph should be read as a whole.  In effect, the judge found that the Board had a rational basis to find against the credibility of the applicant.  Thus, the judge could not be satisfied that there was any proper ground for interfering with such finding.

11.  We have read the full decision of the Board.   We note that the Board’s conclusion was not only based on the applicant’s explanation as to why he did not lodge any torture claim in other countries, but also the discrepancies on his accounts (such as the circumstances under which the property was transferred to him and the cause of his father’s death) and other relevant matters, see paragraphs [61] – [64] of the Board’s decision.  We agree with the judge that the Board is perfectly entitled to reach its conclusion on the applicant’s credibility. 

12.  In light of this finding, there is no substantial ground for believing that he would face a real risk of being subjected to ill-treatments which meet the high thresholds as required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

13.  As regards the fairness of the process before the Board, this Court has repeatedly held that 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 [2009] 2 HKLRD 346 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  On the facts of the present case, we do not find anything amiss arising from lack of legal representation in the process before the Board.

14.  Having considered the materials before us, we agree with the Judge’s observations.  We cannot find any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  There is no reasonable basis to challenge the decision of the Board.  We agree with the Judge that leave to apply for judicial review should be refused.

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