RE SHEIKH FIRUJ

CACV 345/2018

[2018] HKCA 983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 345 OF 2018

(ON APPEAL FROM HCAL 686/2017)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock given on 17 July 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 15 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 18 August 2016 and 9 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally shortly before 30 November 2015 and surrendered to the Immigration Department on 30 November 2015.  He raised a non-refoulement claim on 4 February 2016.

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 18 August 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 9 June 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 20 June 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 15 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [42] of the Board’s Decision, the Board found that the applicant’s case was not credible. 

The deputy judge’s decision

7.  The applicant filed a Form 86 on 27 September 2017 which contained the following grounds for judicial review:

(1)   the Board unlawfully fettered its discretion by refusing applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)   the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)   the Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or a result of procedural errors of unfairness; and

(4)   The Board failed to meet the greater care and duty owed to self-represented claimant.

8.  In the affirmation in support of the leave application dated 27 September 2017, the applicant advanced the following arguments:

(1)   there was a lack of legal representation before TCAB;

(2)   there was a lack of language assistance;

(3)   the applicant did not receive any letter from the Director offering the opportunity to provide further information on BOR2 risk; and

(4)   the Board failed to properly consider Country of Origin information and ignored his evidence of pain and suffering.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [20] of the CALL-1 Form:

“12. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. The adjudicator meticulously analysed the material, claim and evidence and then explained his findings. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

13. The supporting affirmation does not clearly and coherently set out the applicant’s grounds but it would appear that he proposes the following as grounds for seeking leave:

(1) his lack of legal representation before TCAB;

(2) the lack of language assistance given to him;

(3) the Director failed to give him an opportunity to claim BOR 2 risk; and

(4) the TCAB failed to properly consider Country of Origin information and ignored his evidence of pain and suffering.

14. 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’.

15. 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.

16. In the applicant’s second ground he submits that he should be entitled to the service of an interpreter provided by the Hong Kong government throughout the process of his claim to avoid jeopardising his rights. There are no particulars in his affirmation to demonstrate where during the process of this appeal/petition he has been prejudiced because of a lack of an interpreter. This ground is not directed at the appeal/petition process. I see no merit in this ground.

17. The applicant’s third ground is a complaint against the Director, he submits he never received any correspondence from the Director inviting him to submit information if he wished to support a BOR 2 risk claim. However, there is no complaint of this nature recorded in the adjudicator’s decision from the applicant. I find no merit in this ground.

18. The applicant’s last ground is a complaint against the adjudicator for failing to properly consider COI information as well as his serious injuries and ill-treatment. The adjudicator in a most articulate, definitive and thorough examination of the applicant’s credibility found him utterly implausible and therefore it was an unnecessary exercise to examine COI information.

19. 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.

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

Grounds for appeal

10.  In the Notice of Appeal dated 27 July 2018 the applicant advanced the following grounds of appeal:

(1)   there was lack of legal and language assistance given to me for the BOR 2 risk.  This is because I have never received the BOR 2 letter and I was not entitled to legal representation for the determination despite such assessment was one before the Director;

(2)   there as a lack of language assistance throughout the process including but not limited to issuing the Determination of Appeal/Petition in English with no translation.  All correspondences are also in English and not in my first language.

11.  In his skeleton submissions dated 13 November 2018, the applicant submitted that the judge erred in failing to recognize the importance and significance of the lack of legal and language assistance given to the applicant for BOR 2 risk. He also expanded on the 2 grounds of appeal in the notice of appeal.

12.  The applicant agreed by a letter of 8 August 2018 that the appeal could be heard by two judges.  We heard the appeal on 13 December 2018.

Discussion

13.  The grounds of appeal advanced by the applicant relate to the proceedings before the Director and the Board.  They do not identify any error on the part of the judge below.  They are also essentially repetition of the complaints made before the judge.  Such complaints were considered and dealt with by the judge, who dealt with the alleged lack of language and legal assistance to the applicant at [14]-[16] of the CALL-1 Form.  As to the Director’s alleged failure to seek further information in respect of the BOR 2 claim, this was dealt with by the judge at [17] of the CALL-1 Form.  Further, the applicant testified at the hearing before the Board with the assistance of a Bengali interpreter ([7] of Board’s Decision).  The Board did consider BOR 2 risk in light of the documents and the applicant’s testimony.  There was thus no real prejudice flowing from the alleged lack of request for further information on BOR 2 risk by the Director.  In any event, the applicant did not identify any real prejudice from the alleged lack of language or legal assistance either in the leave application or on appeal.

14.  As we have pointed out on many occasions, in an appeal to the Court of Appeal, it is necessary to identify errors on the part of the judge, and it will not avail an applicantsimply to regurgitate points made and dealt with below.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.