AHMAD ALI v. DIRECTOR OF LEGAL AID

HCAL 470/2019

[2019] HKCFI 1303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 470 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decision of Master R Lai of the High Court of Hong Kong on 3 December 2018 (“the Master’s Decision”) dismissing the Applicant’s appeal against the decision of the Director of Legal Aid (“the Director”) refusing to grant legal aid to the Applicant for an intended application for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) rejecting the Applicant’s non-refoulement claim.

BASIC FACTS

2.  For the purpose of disposing of the present application, the following brief summary of the background facts shall suffice.  The Applicant is a Pakistani national born on 2 July 1987 in Pakistan.  He entered Hong Kong illegally from Mainland China in July 2011, and was subsequently arrested in Hong Kong in October 2011.  He made a torture claim on 2 November 2011.

3.  According to Applicant, he was a member of the Muslim Student’s Federation (“MSF”) during his first year graduate studies at Lahore in 2003/2004, and became one of the office secretaries of MSF.  MSF supported a party called Pakistan Muslim League “Q” (PML(Q)), which was the ruling party in Pakistan led by Mr Pervez Musharraf at that time.  The Applicant arranged meetings and rallies as well as gathering members to attend the activities of PML(Q).  He also participated in numerous campaigns against a rival party called Pakistan Muslim League (Noon) (“PML(N)”).  He claimed that because of his active participation in MSF in support of PML(Q): (i) he was targeted by PML(N) and falsely accused of murder and being engaged in terrorist activities in 2003/2004, but he was not arrested for the murder accusation and was acquitted in respect of the terrorist accusation in around 2004, and (ii) in July 2005, he was arrested by the Pakistani police and falsely charged with numerous criminal offences.  During his detention, the Applicant was tortured by the police.  He was eventually released after paying some money.  Between 2005 and 2009, the Applicant left Pakistan for China and returned to Pakistan a couple of times.  In February and March 2011, some PML(N) members fired gun shots at his house, and the furniture and appliances in his house were taken away.  In July 2011, the Applicant left Pakistan and went to China and then to Hong Kong.  The Applicant claimed that if he were to return to Pakistan, he would be harmed or killed by the Pakistan government, police and people from PML(N), which became the ruling party in Pakistan in 2013.

4.  On 31 July 2014, the Director of Immigration made a decision (“the DOI 2014 Decision”) dismissing the Applicant’s non-refoulement claim, which was assessed under the Unified Screening Mechanism on all applicable grounds, including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights, and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.  In the Director’s assessment: (i) the level of risk of harm against the Applicant from the Pakistani government, police and PML(N) members upon his return to Pakistan was “low”, (ii) the availability of state protection further lowered or negated the level of risk, and (iii) reasonable internal relocation alternatives were available to the Applicant.

5.  On 1 June 2015, the Applicant lodged an appeal/petition to the Board against the DOI 2014 Decision.  His appeal/petition was rejected due to late filing.

6.  On 30 September 2016, the Director of Immigration invited the Applicant to submit additional facts, if any, which he might consider relevant to his non-refoulement claim based on all applicable grounds including any absolute and non-derogable rights under the Hong Kong Bill of Rights such as a risk to the right to life under Article 2 thereof.  The Applicant duly made further submissions to the Director of Immigration on 13 and 19 October 2016.  The Applicant claimed that his family members, relatives and close friends were killed by his enemies between 2004 and 2016, and his enemies now wanted to kill him.  The Applicant also said that his cousin was kidnapped by the Pakistani police.  He alleged that the Pakistani government was directly involved in those matters and used Punjabi Taliban for the killings.

7.  On 19 December 2016, the Director of Immigration made a further decision (“the DOI 2016 Decision”) rejecting the Applicant’s non-refoulement claim based on any absolute and non-derogable rights under the Hong Kong Bill of Rights.  The Director considered that there was no indication that the alleged killings or kidnapping of the Applicant’s friends and relatives were related to his previous political activities, neither was there any objective evidence that the killings were done by the Taliban.  The Director took the view that the Applicant’s claimed fear of being killed by the Taliban was based on his unsupported assertion, and rejected that allegation.  The Director also took the view that there was objective Country of Origin Information (“COI”) showing that the Pakistani government had the determination to combat against terrorism and would exercise due diligence to investigate and arrest terrorists including key figures of the Taliban, and that there was a reasonable relocation alternative open to the Applicant.

8.  On 19 December 2016, the Applicant lodged a petition to the Board against the DOI 2016 Decision.  On 26 September 2017, the Board heard the petition.  On 25 October 2017, the Board handed down a written decision dismissing the petition (“the Board Decision”), on inter alia the ground that the Applicant’s claim was just a bare allegation without any material facts in support.

9.  On 31 October 2017, the Applicant applied to the Director of Legal Aid for an intended application for judicial review of the Board Decision.  On 20 December 2017, the Director made a decision refusing to grant legal aid to the Applicant on the ground that he had failed to show that he had reasonable grounds for the intended application for judicial review.

10.  On 17 January 2018, the Applicant lodged an appeal against the Director’s decision.  Master R Lai heard the legal aid appeal on 26 November 2018.  The Applicant was represented by Mr Rowen Hunter of counsel at the hearing of the appeal.  On 3 December 2018, Master R Lai handed down his decision dismissing the Applicant’s legal aid appeal (ie the Master’s Decision).

11.  On 19 February 2019, the Applicant made the present application for leave to apply for judicial review of the Master’s Decision.  At paragraph 10 of the Form 86, three grounds are advanced in support of the intended application for judicial review, namely:

(1)  the Master made an error of law in respect of the proper test governing an appeal against a decision of the Director refusing to grant an application for legal aid;

(2)  the Master failed to properly assess “the impact of the COI and thus the personal danger to the Applicant in returning to Pakistan” and

(3)  the Master unreasonably underestimated the “futility of relocating within Pakistan in regard to the Applicant’s safety”.

12.  In the Form 86, the Applicant also requests for an oral hearing of the application if leave to apply for judicial review is not granted on paper.

13.  On 20 February 2019, the court directed that the application for leave to apply for judicial review shall be heard on 17 May 2019, and granted leave to the Director to file evidence and attend the hearing to resist the application.  On 30 April 2019, an affirmation of Yim Yin Lun was filed on behalf of the Director.  At the hearing on 17 May 2019, the Applicant appeared in person, and the Director was represented by Ms Katherine Chan, Government Counsel.

DISCUSSION

14.  At the outset, it is important to clearly distinguish between the different questions required to be answered by:

(1)  a Master when hearing a legal aid appeal brought by a non-refoulement claimant seeking legal aid to challenge a decision made by the Director of Immigration and/or the Board refusing his non-refoulement claim; and

(2)  the High Court when hearing an application for leave to apply for judicial review of the Master’s decision dismissing the legal aid appeal.

15.  In relation to the question to be answered by the Master:

(1)  It should be borne in mind that the Director of Immigration and the Board are the primary decision-makers in respect of non-refoulement claims.  Subject to High Court’s supervisory jurisdiction in judicial review, the decision of the Board is final.  It needs to be emphasized that the remedy of judicial review is not to be regarded as giving a non-refoulement claimant a further round of appeal against the decision of the Board.  The remedy of judicial review should be regarded as an exceptional remedy of last resort.  The High Court would not examine the merits of the non-refoulement claim afresh.  It can only intervene in the Director of Immigration/Board’s decision on the grounds of illegality, procedural unfairness or irrationality.  In so far as the ground of irrationality is concerned, the threshold for intervention is necessarily a high one.  In view of the large number of non-refoulement claims assessed by the Director of Immigration and appeals or petitions heard by the Board against decisions made by the Director of Immigration, the Director of Immigration/Board would have accumulated vast experience and expertise in dealing with such claims, appeals and petitions.  It will be rare and only in exceptional circumstances that the High Court would come to the conclusion that a decision of the Director of Immigration/Board is “irrational” in the public law sense.

(2)  The above discussion is relevant when the Director considers an application for legal aid for an intended application for judicial review of a decision made by the Board rejecting a non-refoulement claim.

(3)  Under Section 10(3) of the Legal Aid Ordinance, Cap 91, a person shall not be granted a legal aid certificate in connection with any proceedings unless he shows that he has reasonable grounds for taking, defending, opposing or continuing such proceedings.  In the context of an application for legal aid for an intended application for judicial review of a decision made by Board rejecting a non-refoulement claim, the Director has to ask whether the non-refoulement claimant has shown that he has reasonable grounds for the intended application for judicial review.  For this purpose, “reasonable grounds” requires the non-refoulement claimant to show that there is a reasonable, as opposed to a fanciful, chance of the High Court in judicial review allowing the intended application for judicial review (see Nguyen Trong Son v Director of Legal Aid, LAA 20/1999, 15 December 2000, per Keith JA).  Although the Director does not have to be satisfied that the non-refoulement claimant’s intended application for judicial review will more probably than not succeed, where the intended ground of judicial review is based on the “irrationality” of the Board’s decision, the Director is entitled to take into account the high threshold for making good this ground of judicial review when assessing whether the non-refoulement claimant has shown that he/she has a reasonable, as opposed to a fanciful, chance of success in the intended application for judicial review.

(4)  Since a legal aid appeal is in the nature of a de novo hearing, the Master, when hearing an appeal against such decision of the Director, should adopt the same approach.

16.  The question to be answered by the High Court when hearing an application for leave to apply for judicial review of the Master’s decision dismissing a legal aid appeal is different.  The focus of the High Court in such application is the decision of the Master.  The question for the High Court is not whether the non-refoulement claimant has shown that he/she has a reasonable chance of success in the intended application for judicial review of the Board’s decision, but whether his intended application for judicial review of the Master’s decision is reasonably arguable and has a realistic prospect of success.  It is not the High Court’s function to re-examine the Master’s decision afresh, or consider whether it would have granted legal aid to the non-refoulement claimant to assist him/her to apply for judicial review of the Board’s decision.

(1)  “A judicial review application is not an appeal from either the Director or the Master’s Decision.  The court in a judicial review is concerned with legality and not with merits.  Relief will only be granted if the applicant can demonstrate that the Director has committed an error of law, or has acted Wednesbury unreasonably in arriving at the conclusion” (see Chung Yuk Ying v Registrar of the High Court [2013] 5 HKLRD 78, at paragraph 11 per Queeny Au-Yeung J; Wong Chun Tak v Registrar of the High Court [2015] 3 HKLRD 449, at paragraph 17 per Queeny Au-Yeung J).

(2)  “In a judicial review of the decision of a master in a legal aid appeal, as in the case of a judicial review of other administrative decision, the court is not sitting as a further tier of appeal. The court’s function is confined to review the legality, rationality and fairness of the process” (see Chan Chiu Kwan v Registrar of the High Court [2015] 1 HKC 533, at paragraph 8 per Lam VP).

Where the ground of judicial review of the Master’s decision is based on “irrationality”, the threshold for intervention is again a high one.  At the leave stage, the question for the High Court is whether it is reasonably arguable that no reasonable tribunal, properly directed on the law and fact, could have come to the Master’s conclusion that the non-refoulement claimant has failed to show that he/she has a reasonable chance of success in the intended application for judicial review of the Board’s decision.

17.  As earlier mentioned, three grounds are sought to be advanced in this application for judicial review.  The first ground contends that the Master made an error of law in respect of the proper test governing an appeal against a decision of the Director refusing to grant an application for legal aid.  In Master R Lai’s Brief Reasons for Decision, the Master stated as follows:

[53] In the Nguyen Trong Son case, the court stated that the function of the court was to determine whether the appellant had shown that he had reasonable grounds for taking the proceedings to be covered by the legal aid application. For the court to allow a legal aid appeal, the court has to be satisfied that the appellant has shown that there is a reasonable chance (which has to be more than fanciful) of the court at trial deciding the issues in the appellant’s favour.

[54] On the analysis of the Appellant’s case as set out above and applying the principles set out in the Nguyen Trong Son case, I am not satisfied that the Appellant’s application for leave to judicial review has a reasonable chance of success. I agree with the DLA’s decision in refusing the Appellant’s legal aid application.

18.  I do not consider that the Master made any error of law as regards the proper test or approach to be applied in a legal aid appeal.

19.  The second and third grounds go to the merits of the Master’s Decision, in particular in relation to his assessment of COI and the possibility of internal relocation within Pakistan.

(1)  In respect of COI, the Applicant’s argument was that “with COI provided by the Appellant showing that police corruption was endemic and widespread in Pakistan, it was not a logical conclusion for the DOI/the Board to conclude that there was sufficient degree of state protection relying on COI on actions taken by the authorities against police officers who had abused suspects and procedures that might be used to complain about the police”, and that “the weight of COI was clearly on the side of police and authorities being at best complacent and at worst deeply corrupt if not also brutal and that was the reasonable conclusion to draw from the evidence” (see paragraphs 30 to 31 of the Master R Lai’s Brief Reasons for Decision).  The Master, however, took the view that the Director of Immigration had carefully considered the COI before coming to the conclusion that “there was a fair legal system in Pakistan” and that “there was no indication that the PML(N) was involved or it had influenced the execution of police duties”, and considered that the findings of the Director of Immigration and the Board were not Wednesbury unreasonable (see paragraphs 33 to 35 of the Master R Lai’s Brief Reasons for Decision).

(2)  In respect of possibility of internal relocation, the Applicant’s argument was that “the political party who sought to persecute the Appellant was a national one with adherents everywhere and the police were generally corrupt and venal to the bidding of such people”, and that “the nature of the persecution was national in character.  As such it was illogical to consider relocation across the country was an available alternative to the Appellant” (see paragraph 38 of the Master R Lai’s Brief Reasons for Decision).  The Master considered, however, that on the existing materials, the Director was entitled to find that the Applicant was not wanted or targeted by the Pakistani police all over Pakistan and he was not a target of the Pakistani government, and that he attracted no attention from the authorities beyond his hometown.  Accordingly, it was not Wednesbury unreasonable for the Director of Immigration and the Board to consider that internal relocation was a viable alternative open to the Applicant (see paragraphs 39 to 42 of the Master R Lai’s Brief Reasons for Decision).

(3)  In respect of both grounds, the Master was of the view that the Applicant did not have a reasonable chance of success in his intended application for leave to apply for judicial review of the Board Decision (see paragraphs 37 and 43 of the Master R Lai’s Brief Reasons for Decision)

(4)  The Master took into account the Applicant’s delay in this case and the lack of merits of the Applicant’s intended application for judicial review of the Board Decision in coming to the conclusion that the Applicant did not have a reasonable chance to obtain an extension of time to apply for leave to apply for judicial review.

20.  As earlier mentioned, it is not the court’s function in the present application to re-examine the Master’s Decision afresh, or consider whether it would have granted legal aid to the Applicant to assist him to apply for judicial review of the Board’s decision.  In my view, it was open to the Master to find, on the materials before him, that the Applicant did not have a reasonable chance of success in the intended application for judicial review of the Board’s decision.  It is not reasonably arguable that no reasonable tribunal, properly directed on the law and fact, could have come to the Master’s conclusion.

21.  It follows that the intended application for judicial review of the Master’s Decision is not reasonably arguable, and has no realistic prospect of success.

22.  There is one other matter that I should mention.  At the hearing on 17 May 2019, the Applicant applied for an adjournment so that he could instruct a lawyer to represent him in this application for leave to apply for judicial review.  The court informed the Applicant that it would hear the Applicant’s submissions in support of the application for leave to apply for judicial review, and if the court was satisfied that the application had some merits it would consider granting the adjournment sought.  Thereafter the Applicant made submissions in support of the application for leave to apply for judicial review.  The court has come to the conclusion that the intended application for judicial review is clearly not reasonably arguable and has no realistic prospect of success, and does not consider that the disposition of the application for leave to apply for judicial review should be further delayed.  Accordingly, the Applicant’s application to adjourn the hearing of the application for leave to apply for judicial review is refused.

DISPOSITION

23.  For the foregoing reasons, the application for leave to apply for judicial review is dismissed.

24.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and shall not be repeated here.  I consider that the Director should be entitled to be paid his costs in these proceedings, because:

(1)  the present application clearly lacks any substantive merits;

(2)  the Director attended the leave hearing at the invitation of the court in view of the failure of the Applicant to set out all the relevant facts in his Form 86 and supporting affirmation; and

(3)  the Director has provided substantial and helpful assistance to the court.

25.  I therefore make an order that the Applicant shall pay the Director’s costs of these proceedings, to be taxed if not agreed.