RE IFTIKHAR UDDIN

CACV 30/2020

[2020] HKCA 989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 30 OF 2020

(ON APPEAL FROM HCAL 2522/2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 7 January 2020 refusing leave to the applicant 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 (“Board”) dated 19 October 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 21 December 2015 and 8 January 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 15 December 2012 illegally and was arrested by the police on 18 December 2013.  He lodged a non-refoulement claim on 22 December 2013. 

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

4.  By a Notice of Decision dated 21 December 2015 (“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 8 January 2018, 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 March 2018, the Board dismissed the appeal on 19 October 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [61] of the Board’s Decision, the Board found that there was no reliable evidence that the applicant’s account of his experiences in Pakistan is true and that there was no real chance for believing that he would suffer harm from the Taliban. 

The judge’s decision

8.  The applicant filed a form 86 on 9 November 2018 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 9 November 2018, the applicant advanced a number of grounds for judicial review against the decisions by the Director and the Board.  The grounds against the Board have been summarized by the judge at [12] of the  CALL-1 Form:

(1)  The Board was in error for not considering the applicant as member of particular social group, namely, “people who encounter problems with Taliban”; or “people who have family members kidnapped by Taliban” or “people who have family members killed by Taliban”.

(2)  The Board acknowledged that the problem with the Taliban is still ongoing in Pakistan and state protection is not available, the Board should have remitted his case to the Immigration Department on that ground alone but the Board failed to do so.

(3)  As to the credibility issue, the applicant submitted that the delay in his application for protection should not affect his credibility. He is uneducated and had language problem. The interpreter did not interpret fully what he said to the Board.  His legal representatives failed to spot the inconsistency in his evidence and were guilty of professional misconduct.

10.  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 [13] to [24] of the CALL-1 Form:

“13. In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

14. The applicant has not set out any exceptional circumstances.

15. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

16. The applicant’s application for leave for judicial review of the Director’s Decisions therefore fails in limine. I dismiss his application.

The Board’s Decision

17. The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decisions to him. His friend had assisted him with the hearing bundle and the Board’s Decision.

18. It is obvious that as the Board rejected all of his evidence on the salient facts in support of his claim. Therefore, he has no factual basis for his claim.

19. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

‘13. 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….

14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

20. Ground (1) is finding of the fact by the Adjudicator of the Board. There is no reason to upset the Board’s findings.

21. Ground (2) fails as the Board had not found that Pakistan was unable to provide state protection for its people. The Board considered that since it decided that there was no reliable evidence that the applicant’s account of his experiences in Pakistan was true, it was not necessary to consider other matters. See §§61 and 62.

22. The Board is entitled to take into consideration that the applicant failed to take advantage of a reasonable opportunity to claim non-refoulement protection under section 37ZD (1)(b) of the Ordinance. The language and interpreter’s problem had been considered by the Board. The applicant had not raised his legal representative’s misconduct at the hearing before the Board. The Board had not made any reference to this issue. The applicant simply is not allowed to raise this issue at this stage. Ground (3) fails.

23. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

24. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

11.  In the Notice of Appeal dated 20 January 2020, the applicant contended that:

“2. …The Director of Immigration has not made a finding that was detrimental to my credibility. On the contrary, the Board has. I therefore verily believe that the decision of the Board should therefore be subject to review. The Court chose not to intervene and is unfair. There should be a review mechanism regardless of the nature.

3. The [judge] has further erred in failing to recognize and address the significance of lack of language assistance to me. I have previously complained of the Board’s failure in arranging for an interpreter or a translation in order for me to better understand my case and consider my options of appealing to a higher authority. Despite raising this issue, the [judge] has failed to address anywhere in the judgment in this regard and the [judgment] was not read back to me but was merely posted to me by mail.

4. Whilst I am not arguing that I am absolutely entitled to free legal representation, I believe that adequate amount of language assistance is crucial for my case and the absence of such should be considered procedural unfairness. This is particularly since I have been put in a detrimental position due to the lack of language assistance.

5. Even till now, the CALL 1 Form was not explained to me by a qualified interpreter or translator and I therefore am again deprived of the right to make a full appeal.

6. Since [the judge] did not consider this ground when making the judgment, I respectfully submit that the judgment is erred and my case should be reconsidered.

7. I hereby request for the translation and language assistance required for the better understanding of my case as this is one of the primary rights of a litigant.  I also request for an oral hearing with an interpreter arranged and reserve the right to provide further submissions…upon having the determination read back to me.”

12.  In his skeleton submissions dated 14 October 2020, the applicant repeated the grounds of appeal raised in the notice of appeal.

13.  The applicant agreed by a letter of 20 January 2020 that the appeal could be heard by two judges.  We heard the appeal on 24 November 2020.

Discussion

14.  In the court below, the applicant did not rely on the ground based on the allegedly different findings on the credibility of the applicant by the Director and the Board. The applicant has not given any good reason why he should be allowed to raise this ground on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).  We would therefore give no weight to this ground.

15.  As for the ground based on the alleged lack of adequate legal representation, the main complaint by the applicant was that his legal representative failed to notice the incorrect interpretation of his evidence before the Board which was inconsistent with his evidence.  The applicant did not give any particulars for this ground in the documents filed before the judge and the applicant has thus failed to substantiate any error in the interpretation or the inadequacy in his legal representation.  This ground is not reasonably arguable.

16.  As for the alleged lack of language assistance, the applicant has confirmed to the judge that he received some assistance from his friend in his appeal to the Board (see [17] of CALL-1 Form).  The applicant failed to provide sufficient particulars for the prejudice he suffered from as a result of the lack of language assistance.  He also did not identify any argument or evidence he wanted to advance before the Board if he had been given language assistance.  We do not accept that the applicant suffered any real prejudice from the lack of language assistance before the Board.

17.  The applicant asked for an oral hearing before the judge and a hearing was fixed to allow him to present his case with the assistance of an interpreter.  Although the applicant complained that the CALL-1 Form was not read to him in a language he understood, it is clear from the notice of appeal that he was able to understand the CALL-1 Form and identify the errors allegedly committed by the judge.  We also do not accept that the applicant suffered any prejudice from the lack of language assistance before the judge.

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