RE SARWAR MUHAMMAD WAQAR

CACV 179/2018

[2018] HKCA 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2018

(ON APPEAL FROM HCAL 500/2017)

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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.  On 13 August 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 11 May 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from a decision of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 16 August 2018, for leave to appeal to the Court of Final Appeal.  In the notice of motion, the applicant advanced various grounds for seeking leave as summarised below:

(1)   In relation to [13] of our judgment, the applicant submitted that the court of appeal “should not have blindly followed the Deputy Judge’s finding just because the end result may be the same”.

(2)   The applicant should have been provided with legal representation and language assistance for his claim based on BOR2 risk because legal representation was available for the claim based on other risks.

(3)   There is no evidence to show that the applicant received language assistance when his claim based on BOR2 risk was being assessed.  The authorities had the responsibility to make sure that the applicant understood the content of the documents.  It was not reasonable for the authorities to expect that the applicant could understand correspondence in English when the applicant was acting in person.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 30 August 2018.  In his written submission, the applicant reiterated the grounds in the notice of motion.

5.  Having considered the applicant’s notice of motion and written submissions, we can find no reason for us to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion and written submissions.

6.  The matters stated by the applicant in his notice of motion do not constitute valid grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his notice of motion and his written submission.  

7.  For the first ground, we have held at [13] of the judgment that all the grounds proposed by the applicant against the Director have no merit.  There is simply no basis for the court to grant leave for judicial review against the Director.  There is no merit in this ground.

8.  For the second ground, this court has already held at [15] of the judgment that the applicant failed to demonstrate why the Director is under a duty to refer his case to the Duty Lawyer Scheme, given that he does not have an absolute right to free legal representation at all stages of the proceedings.  In the notice of motion, the applicant said that free legal representation should have been available because it is available for the claim based on other risks, and for the assessment before the Unified Screening Mechanism.  In Re Zunariyah [2018] HKCA 14 and the other cases cited at [15] of the judgment, the court has already addressed the issue of free legal representation in the context of non-refoulement claimants.  The applicant’s assertion that free legal representation for BOR 2 risk should be available because it is available for other risks is wrong in law and unsupported by authority.  This ground is bound to fail.

9.  For the third ground, this court has already held that the applicant has exaggerated his language difficulty at [16] of the judgment.  At [14], this court noted that the applicant did not in fact have anything to add for the purpose of establishing his claim based on BOR2 risk. The applicant cannot succeed on the third ground.

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the notice of motion dated 16 August 2018 is dismissed.