RE WASEEM BAIG

CACV 323/2021

[2021] HKCA 1640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 323 OF 2021

(ON APPEAL FROM HCAL NO 2737 of 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 17 June 2021, refusing leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 1736.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 26 November 2018 (“the Board’s Decision”); the decision of the Director of Immigration (“the Director”) dated 26 February 2018 (“the Director’s Decision”); the Supplementary Claim Form dated 26 January 2018 (“the SCF”) and the Record of Screening Interview dated 13 February 2018 (“the Record”).

3.  This appeal was listed to be heard on 12 October 2021.  The applicant was directed to lodge two sets of skeleton argument on or before 14 September 2021 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning were communicated to the applicant by the Notice of Hearing dated 18 August 2021.

4.  The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non‑compliance with such requirement can substantially impair 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.  In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

5.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated.  We have proceeded to consider this appeal on paper based on the available materials.

Background

6.  The applicant is a national of Pakistan.  He entered Hong Kong illegally from the Mainland on 7 June 2011.  He was arrested by the police and referred to the Immigration Department on 13 June 2011.  He made a torture claim on 14 June 2011 which was rejected by the Director and the Board on 18 November 2018 and 1 February 2014 respectively.  He raised a non-refoulement claim on 22 November 2017 on the basis that he would be killed or ill-treated by his uncle who objected to his proposed marriage with his uncle’s daughter if he returned to Pakistan.  The factual details of the applicants’ claim were summarised by the Deputy Judge at [7] ‑ [9] of the Leave Decision.

7.  By the Notice of Decision dated 26 February 2018, the Director assessed and rejected the applicant’s non-refoulement claim on all applicable grounds other than torture, namely, BOR2 risk[1], BOR3 risk^[2], and persecution risk^[3]. Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from his uncle upon his return to Pakistan as low. The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available and reasonable.

8.  On 12 March 2018, the applicant appealed the Director’s Decision to the Board.  He attended an oral hearing before the Board on 19 September 2018 with the assistance of an interpreter who spoke Urdu and English and gave evidence.  The Board dismissed his appeal on 26 November 2018.  The Board found significant inconsistences in the details presented by the applicant at different times and was not satisfied that the applicant had told the truth about his reasons for leaving Pakistan.  The Board was of the view that based on the COI, relocation would not be unduly harsh or unreasonable.

The Leave Decision

9.  On 3 December 2018, the applicant filed a Form 86 together with a supporting affirmation for leave to apply for judicial review of the Board’s Decision, the Director’s Decision, the SCF and the Record.

10.  The applicant attended an oral hearing on 10 June 2021 with the assistance of an Urdu interpreter.  By the Leave Decision, the Deputy Judge observed and held that:

“Grounds for judicial review

12. The Applicant lodged a nine-page affirmation in support of his application. In essence, he disagreed with the finding of the Director in the Notice and the finding of the Board in the Decision. He complained about procedural unfairness, unfair weighting given on the COI, and bias on the part of the Director and the Board.

13. His complaint of procedural unfairness revolved around the lack of legal and language assistance. He said that he was not given legal assistance in preparation for the appeal before the Board and at the hearing of the appeal. He also complained that the majority of the documents in the appeal bundle were in English and without translation. He said the appeal bundle was never read back to him. He was at a loss in understanding the reasons for rejecting his case. As a result, he was also deprived of the opportunity to make a full application for leave to apply for judicial review.

14. In Re Zafar Muazam[4], Re Zunariyah[5], Re Zahid Abbas[6], Re Tariq Farhan[7], and Re Lopchan Subash[8], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[9] nor the judgment of FB v. Director of Immigration[10] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether he was prejudice by the lack legal representation.

15. The Applicant had the benefit of legal representation in presenting his case to the Director. He was not legally represented before the Board. However, all the benefits that legal representation could have afforded him were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. The Applicant suffered no prejudice due to lack of legal assistance in preparing for the appeal and lack of legal representation before the Board.

16. The Applicant had the benefit of the interpretation services of a qualified interpreter in preparing his non‑refoulement claim form and at the screening interview and in presenting his case to the Director. He also had the services of a qualified interpreter at the oral hearing before the Board. The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI. He certainly knew what were in the non-refoulement claim form prepared by him and the record of the screening interview which he attended. The record had been read back to him and he signed to acknowledge that he understood and agreed with the contents and that no amendment was necessary. Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. It is not open to him to complain about procedural unfairness when he did not do the minimum to pursue his interest.

17. The Notice of the Director was issued to him on 26 February 2018. It was not until 19 September 2018 that the oral hearing was held. The Notice is in English and, unfortunately, no translation was provided. He cannot expect these documents to be fully translated for him. He had in between the issue of the Notice and the oral hearing nearly seven months to seek assistance from among his own circle and ethnic community. Indeed, he had access to interpretation services as reflected in his affirmation and Notice of application for leave to apply for judicial review filed in connection with this application which were very well written in English. Also, he could have sought assistance from the interpreter at the oral hearing before the Board.

18. His complaint about lack of translation of the Decision is frivolous. The Decision was made after an oral hearing during which he had the benefit of interpretation services. A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal. The Court accepted that he may suffer some inconvenience, but not prejudice, in the preparation of his application for leave to apply for judicial review.

19. The prejudice suffered by the Applicant as result of lack of legal and language assistance is more apparent than real. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. His complaint about lack of legal and language assistance is over-exaggerated.

20. As for his complaint about bias on the part of the Director and the Board as well as the unfair weighting given to different information in the COI, the COI relied on by the Director and the Board are all from credible and official sources which the Applicant had no complaint. As for the weighting to be given to conflicting information in the COI, it is a question of fact exclusively within the province of the Board as the tribunal of fact. The Director fairly referred to conflicting information in the COI. There was no attempt to pick and choose particular COI or information in the COI to damage the Applicant’s case. The Applicant could identify no evidence of bias.

21. The Applicant suggested that the Board erred in not believing him because of the inconsistencies and discrepancies in his evidence. He argued that it had been a long time since the incident occurred and he had suffered a lot of mental stress which almost made him forget a lot of things in proper order. The Board had actually allowed for the possibility of failure of memory due to lapse of time: see paragraph 52 of the Decision. The inconsistencies were not about order of event but particulars of significant events which one would most unlikely forget. The Board’s assessment of credibility could not be criticised as being unreasonable or irrational.

22. As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board. The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[11].

23. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the three applicable grounds under the USM; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. The Decision satisfied the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success.

Conclusion

24. For the above reasons, leave to apply for judicial review is refused.”

The Appeal

11.  On 25 June 2021, the applicant filed his Notice of Appeal against the Leave Decision.  In his Notice of Appeal, he advanced the following grounds of appeal:

(1)  The Court and the authorities did not exercise caution and diligence in handling his case as a self-represented litigant and it has been procedurally unfair. (“Ground 1”)

(2)  The Deputy Judge’s decision was biased and erroneous. (“Ground 2”)

(3)  He did not have language and legal assistance at all material times.  As he was unable to fully understand English and the Deputy Judge’s decision was not read back to him in his first language, it was difficult for him to prepare for the appeal without any assistance and he was deprived of the right to seek further avenues of appeal.  He failed to elaborate any grounds in his affirmation because he was not able to find any legal advice or free legal representation and was not able to handle such legal jargon. (“Ground 3”)

(4)  It was procedurally unfair that there was no other avenue for a non-refoulement claimant to seek an appeal against a decision based purely on credibility. (“Ground 4”)

Discussion

12.  The relevant legal principles governing the appeal in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

14.  In relation to Grounds 1 and 2, the applicant simply made general assertions unsupported by any specifics or elaboration.  The Deputy Judge had set out in detail the relevant factual background of the applicant’s case, the findings and observations of the Board and his reasons for rejecting his application to seek leave to apply for judicial review.  There is no error of law or procedural fairness or irregularity in the Leave Decision.  As such, Grounds 1 and 2 must fail.

15.  Ground 3 is devoid of merit.  Neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for protection against BOR2 or BOR3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  The applicant had free legal assistance in relation to the assessment of his non‑refoulement claim by the Director.  Although he had no legal representation before the Board and the Judge, the assessment of his non‑refoulement claim by the Board and the consideration of his application for leave to apply for judicial review by the Deputy Judge were thorough and fair.  We consider that a high standard of fairness had been achieved in the overall process of the determination of his non-refoulement claim.

16.  It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  We note that the court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  During the oral hearings before the Deputy Judge and the Board, the applicant was assisted by Urdu interpreters and the applicant had reasonable opportunities to make his oral submissions during those hearings.  Accordingly, Ground 3 also fails.

17.  Ground 4 is a general allegation unsupported by any specifics or particulars.  In any event, the applicant had already exercised his right of appeal against the Director’s Decision to the Board, which was in the nature of a re-hearing.  The fact that there is no further right of appeal against the Board’s Decision is not a valid ground of judicial review against the Board’s Decision.  The applicant had also exercised his right to seek leave to apply for judicial review against the Board’s Decision, which had been thoroughly considered by the Deputy Judge.  There is no unfairness in the whole process of determination of his claim.

18.  Having considered the materials before us, we are of the view that the Deputy Judge’s observations and conclusions are fully justified.  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 Deputy Judge that leave to apply for judicial review should not be granted.

19.  For all these reasons, we dismiss the appeal.