RE ALI ARSHAD

CACV 65/2018

[2018] HKCA 304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 65 OF 2018

(ON APPEAL FROM HCAL 392 OF 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 Woodcock on 5 March 2018 refusing leave to the applicant to apply for judicial review. The applicant is a Pakistani national. He entered Hong Kong illegally on 25 December 2013. He was arrested by the police on 28 December 2013. On 30 December 2013, he lodged a non-refoulement claim. The claim is based on the threat from members of an opposing political party. According to the applicant, he and his father were supporters (but not members) of a political party PML-N. In around April 2013, supporters of the opposing party PPP shot PML-N supporters. The applicant’s father was shot dead and the applicant filed a police report. Since then, members of PPP tried to locate the applicant and threatened to kill him.

2.  The Director decided against the claims on 24 March 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 16 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 4 January 2017, the Board dismissed the appeals on 9 June 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Director Decision, Further Decision and the Board Decision.  The Form 86 filed by the applicant on 12 July 2017 did not state any ground for judicial review.

5.  In his affirmation of 12 July 2017, he gave the following grounds for judicial review:

(1)  Lack of legal representation.

(2)  Lack of language assistance.  The applicant did not know if the Non-refoulement Form was translated correctly. Also, the applicant was not given an interpreter when he was asked by the Director to submit further information on BOR 2 risk.

(3)  Lack of reason given in the Further Decision.

6.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [17] to [26] of the CALL-1 Form of 5 March 2018:

“17. The applicant has sought to judicial review the decisions of both the Director as well as the adjudicator of the TCAB. In my view, this is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or a rehearing. There is no room for a judicial review of the Director’s decision. I have considered his grounds of his application against the decision of the adjudicator of the TCAB only.

18. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. 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 him and the procedure undertaken are not made out.

19. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. 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’.

20. 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.

21. 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. This ground is not reasonably arguable.

22. The applicant’s second ground has two parts, the first part is a complaint that the duty lawyer service would not provide him with a translation of his non-refoulement claim form. He requested a translation to ensure the interpreter translated it properly. If there had been any issue with the translation and his claim was not recorded properly or accurately, it would have come to light long before the appeal stage. There is no evidence of this and there is no merit in this ground.

23. The second part of ground 2 is a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a further decision to be issued was in English, this normally relates to a BOR 2 risk claim separately considered by the Director. The complaint is that the letter was too technical for him. He provides no further particulars. He only says that the fact he could not reply on time led the Immigration Department to decide against him. There is no record of any complaint to the adjudicator in the decision. He submits the government should provide an interpreter to the applicant as and when required, I quote from para 8 of the affirmation ‘so as to avoid jeopardising my rights’. There is no merit in this ground either.

24. The applicant’s third ground relates to the decision of the Director only, a failure to give reasons for his rejection of the BOR 2 risk claim, and as I have said above cannot be subject to judicial review. This decision of the Director was subject to an appeal to the TCAB and decided upon by the TCAB.

25. I do not find any ground that shows there was an error of law in the decision nor do I see any 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.

26. 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.  In the notice of appeal of 19 March 2018, the applicant repeated the grounds in his affirmation dated 12 July 2017.  He also argued that his application for leave to apply for judicial review should not have been disposed of on paper because he did not receive the notice of hearing.

8.  The applicant agreed by a letter of 21 March 2018 that the appeal can be heard by two judges.

9.  The appeal was listed for hearing on 13 June 2018.  The applicant was directed to lodge his skeleton submission by 16 May 2018, and warned that failure to do so would result in the hearing being vacated and his appeal dealt with on paper based on the materials he had provided.  The hearing date and the direction were communicated to the applicant in a letter from the court and the notice of hearing both dated 30 April 2018.

10.  The applicant failed to lodge any skeleton submissions by the stipulated time.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both for the judges and the litigants.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  Nowadays, this court no longer permits unfocused oral presentation of material at an oral hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing.  As such, the hearing date was vacated, and we have processed this appeal on paper based on the available material.

11.  Having considered the applicant’s case in light of the materials before us, we found the judge’s observations to be justified.

12.  In the notice of appeal, the applicant argued that the leave application should not have been disposed of on paper.  The judge gave reasons for paper disposal at [2] of the CALL-1 form:

“2. This court sent him a Notice of Hearing dated 30 August 2017 informing him of the hearing date. I was satisfied that the notice was sent to the address supplied by the applicant in his application form and in his affirmation. The applicant was absent on the hearing date. The interpreter telephoned the applicant on behalf of the court and the applicant claimed that he had not received any notice of hearing. The interpreter confirmed with the applicant that his address was the same address recorded in his application form. As the applicant was absent, I reserved my decision and considered his application on the papers. He did not write asking for another hearing date.”

13.  In the telephone conversation with the interpreter, the applicant did not give any reason for the non-receipt of the Notice of Hearing.  He did not ask for another hearing date in writing.  The judge was right to consider the application on paper only.

14.  The applicant complained about the lack of legal representation in the proceedings in the Immigration Department (for BOR 2 risk) and the Board.  The applicant did not provide any particulars as to the information he could have put forward but failed to due to lack of legal representation. 

15.  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 of 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.  The applicant already had the benefit of legal representation in presenting his case to the Director when the Director assessed BOR3 risk, persecution risk and torture risk.

16.  Even now, the applicant did not state or outline what information regarding BOR 2 risk he wished to provide.  On the facts of the case, we are of the view the assessment of BOR 2 risk could effectively be made on the same materials presented on his behalf with the assistance of lawyers in other respects.

17.  The applicant also had the opportunity to advance his case fully, including his case on BOR 2 risk, before the Board.  We do not find anything amiss arising from lack of legal representation in the process before the Board.

18.  We do not see any merit in the argument based on lack of legal assistance regarding BOR 2 risk on the facts of this case. 

19.  The applicant also complained about the lack of language assistance.  It is clear from the written decision of the Board that there were interpretation services available at the hearing before the Board.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  There is no merit in this ground.

20.  Lastly, the applicant argued that the Director failed to provide adequate reasons in the Further Decision.  The Further Decision dated 16 December 2016 must be read together with the Director Decision dated 24 March 2016 and against the fact that the applicant did not provide any further information on BOR2 risk.  In the Director Decision, the Director had already evaluated the applicant’s claim and concluded at §23 that there was no genuine and substantial risk of the applicant being killed upon his return to Pakistan.  It was not necessary for the Director to repeat his reasoning in detail in the Further Decision.  In any event, the Further Decision has been overtaken by the Board Decision.

21.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

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