RE MOHAMMED SAYEED

CACV232/2018

[2018] HKCA 773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 232 OF 2018

(ON APPEAL FROM HCAL 1011/2017)

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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 appeal against the decision of Deputy High Court Judge Bruno Chan given on 8 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 1 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 3 March 2015 and 7 June 2017 rejecting the applicant’s non-refoulement claim. The Director of Immigration was also named as a proposed respondent.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 17 April 2009 and was given permission to stay until 1 May 2009.  He overstayed and was arrested by the police on 28 September 2011.  After his arrest, he lodged a non-refoulement claim on 1 October 2011. 

3.  The applicant’s claim was based on threats from a man identified as JA who he claimed was wealthy and politically well-connected, arising out of business dealings between them.  The details of the applicant’s claim have been summarised by the judge at [2] to [6] of the CALL-1 Form.

4.  By a Notice of Decision dated 3 March 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 7 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 13 October 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”).

7.  At [21] and [44] of the Board’s Decision, the Board found that there was no concrete evidence to support the applicant’s assertions and his evidence could not be relied on.  The Board was also satisfied at [51] and [62] that there was no state involvement and that state protection would be available for the applicant and at [80] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 5 December 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 5 December 2017, the applicant advanced various grounds for judicial review which are summarised below:

(1)   lack of legal representation in his appeal before the Board;

(2)   lack of legal assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly;

(3)   failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 Risk and for ignoring COI which show malpractice in the judicial system in India;

(4)   wrongful exercise of case management power on the part of the Board for ignoring the additional facts submitted by him regarding BOR 2 risk and for wrongful reliance on COI in assessing malpractice of police and law enforcement in India; and

(5)   lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing. 

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  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 [20] of the CALL-1 Form:

“13. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15. As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

16. Regarding his ground (3) it is plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 3 – 5 and 7 of his Notice of Further Decision in which the additional facts and document provided by the applicant were properly considered by the Director with reasons given for the rejection of his claim under BOR 2 risk. There is simply no merit in this ground of the applicant.

17. As for ground (4) over the Board’s reliance of COI in its assessment of effectiveness of police and law enforcement in India, again the applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 20 – 22 of the decision of the Director as well as those considered by the Board, I do not find any basis in this complaint of the applicant.

18. As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board. There is simply no basis or merit in this ground of the applicant either.

19. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

20. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

12.  In the Notice of Appeal dated 14 June 2018 the applicant advanced the following grounds of appeal:

(1)   there had been procedural unfairness and a failure on the part of the Director and the Board to apply high standards of fairness;

(2)   the applicant should have been entitled to a second legal opinion in addition to the advice he received from the Duty Lawyer Service which advised that there were no merits in his appeal;

(3)   the applicant did not receive any legal representation before the Board or for his claim before the Director based on BOR2 risk;

(4)   both Prabakar[5] and FB[6] were decided over 10 years ago before the implementation of Unified Screening Mechanism, and did not deal with a system in which there was more than one decision by the Director;

(5)   the applicant could not provide additional information on BOR2 risk because he was not given any legal or language assistance; and

(6)   the COI relied by the Board were not neutral or fair, and the applicant wanted to know the balancing exercise conducted by the Board and the Director when using the COI.

13.  In his skeleton submissions dated 25 September 2018, the applicant reiterated the grounds in the notice of appeal.

14.  The applicant agreed by a letter of 19 June 2018 that the appeal could be heard by two judges.  We heard the appeal on 24 October 2018.

Discussion

15.  In relation to the grounds based on the lack of a second legal opinion and the continued applicability of Prabakar and FB, these grounds were never canvassed at the Court of First Instance and are raised for the first time well outside the time limit for judicial review.  They are therefore not open to the applicant now.  (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).  The applicant did not give any good reason why he should be allowed to rely on these grounds at this late stage and we would therefore dismiss these grounds of appeal.  Further, we do not see any merit in them.

16.  As for the remaining grounds in the notice of appeal, they are concerned with the alleged errors committed by the Board and the Director.  They do not identify any error in the judge’s decision, and are thus not viable grounds of appeal.

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