RE HAIDER RAJA NOSHERWAN ALI

CACV 25/2018

[2018] HKCA 347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2018

(ON APPEAL FROM HCAL NO 57 OF 2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 30 January 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Pakistan. He illegally entered Hong Kong from the Mainland on 18 October 2009. He was arrested on the same date. He lodged a non-refoulement claim on 20 October 2009. The claim was based on his fear of being harmed by a man belonging to a rival political party, with whom he had a fight at the polling booth during the 2004 election in Jhelum, Pakistan.

2.  By the Notice of Decision dated 21 August 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director took the view that, given the low frequency and intensity of the past ill-treatments and the fight with his rival was in private nature, the applicant’s feared ill-treatment would unlikely materialize.  The availability of state protection and the possibility of internal relocation would also lower the perceived risk of harm.  The decision covered BOR 3 risk, persecution risk, and torture risk. 

3.  By the Notice of Further Decision dated 28 October 2016, the Director also assessed the applicant’s BOR 2 risk, and decided against him in respect of such risk. 

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions.  After a hearing on 1 November 2016, the Board dismissed the appeal on 23 January 2017.

5.  The intended judicial review was in respect of the decision of the Board.  The Form 86 filed by the applicant on 27 February 2017 did not contain any grounds for seeking relief.  In his supporting affirmation of the same date, he said:

“ I was not able to submit my additional facts and grounds according to BOR 2 claim and Immigration Officer has reached to further decision without additional facts. Torture appeal board has not relied on my additional facts too and there are some error in law according to decision by Torture appeal board. All the details I have mentioned in attached documents which I tried to submit to Immigration department also but they had refused as Decision had been issued. So it is unjustice. I would request to your honourable department for considering on my Application.” (sic)

6.  The applicant did not request an oral hearing for his application for leave to apply for judicial review.  After summarizing the facts and background of the case and giving due consideration to decisions of the Director and of the Board, the Judge gave the following reasons in refusing leave at [26] – [29] of the CALL-1 Form:

“ 26. In his affirmation of 27 February 2017 in support of his leave application for judicial review of the Adjudicator’s decision, the applicant complained that he was unable to submit his additional facts and grounds on BOR 2 Risk so that the Director had reached her further decision without those additional facts, nor did the Adjudicator rely on those additional facts, and that there are some error in law in his decision in dismissing his claim without any further explanation or elaboration. It is therefore not clear what additional facts and grounds that the applicant was referring to in his affirmation that he was unable to produce, but it seems that these are the only grounds that he wishes to rely on in his application.

27. There is however an earlier letter from the applicant dated 13 February 2017 where he referred to a letter dated 25 October 2016 presumably from the Immigration Department inviting him to submit any additional facts relevant to his claim but which he claimed to have never received and hence was unable to submit additional facts or information related to his non-refoulement claim under BOR 2 Risk.

28. The applicant did proceed to set out in his letter what he claimed to be new information relevant to his case, and by applying a high standard of fairness to him by assuming that indeed he never received that letter of 25 October 2016 from the Immigration Department and by allowing him to do so with this letter, a close examination thereof reveals that he was merely repeating what he had earlier already told both the Director of Immigration and the Adjudicator of TCAB about his fear of harm from A and his influence on the police as a supporter of PMLN, and that his concern about his whereabouts being leaked out if he were to return to live anywhere else in Pakistan is mere speculation and unsupported by any evidence. And hence he has failed to advance his case in any way with any such so-called new information to satisfy even the minimum threshold for granting leave to apply for judicial review.

29. In conclusion I do not see any errors of law or unfairness as to procedures in the proceedings before the Immigration Department or the Board and that there is no reasonably arguable basis to challenge those decisions or the fairness of those processes. Accordingly leave to apply for judicial review is refused.”

7.  In the Notice of Appeal of 5 February 2018, the applicant advanced the following grounds of appeal:

“ 1. The Judge referred to the letter dated 13 February 2017. The letter was in response to the letter dated 25 October 2016 but without lawyer and interpreter I could not understand the letter and that is why I did not reply to it earlier. I thought I only needed to set out my case but only later found out through other claimants that I needed to submit additional information for BOR2. By that time it was already too late.

2. I should not be punished for not following the procedures because I am underprivileged in terms of legal knowledge and language capability.

3. Moreover, procedurally the determination should be about why the Immigration Department has failed to ensure I had facts to submit, for example, through arranging an interpreter so that I could understand the content of the letter, rather than about whether or not my claim can substantiate taking the response into account at this stage. This is procedurally unfair to my case.”

8.  Pursuant to the Notice of Hearing dated 19 April 2018, the hearing for this appeal was scheduled to be heard before 3 judges on 11 June 2018.  Lam VP also directed, inter alia, that skeleton submission was to be lodged by 11 May 2018, failing which the hearing on 11 June 2018 was to be vacated and the appeal be dealt with on paper.

9.  The applicant lodged his skeleton argument on 11 May 2018.  Essentially, the skeleton argument repeated the grounds set out in the Notice of Appeal.  The applicant further stated that, due to the lack of legal and language assistance, the process fails to attain the high standards of fairness as required by the law. 

10.  The applicant’s complaint about the lack of legal representation has no merits.  As we have said many times before, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 prescribes 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, and Re Lopchan Subash [2018] HKCA 37.

11.  As the judge observed, the applicant relied only upon the same factual grounds for his BOR2 case, the relevant materials were already before the Director when the Further Decision was made. 

12.  We do not find anything amiss arising from lack of legal representation in the process after the Director’s making of the Further Decision.

13.  Also the applicant had the opportunity to address the Board on BOR 2 risk and again he did not rely on any new fact to support the same.

14.  Nor do we find the applicant’s complaint about the lack of language assistance to have any merits.  It is the applicant’s case that, due to his language limitation, he could not understand the letter from the Immigration Department dated 25 October 2016 and so failed to submit additional facts in support of his BOR 2 claim.  We note however that he did not make any complaint of the lack of language assistance in his appeal to the Board in respect of his BOR 2 claim.  The complaint was only made for the first time in his application for leave to apply for judicial review. 

15.  We also note that his Form 86, his supporting affirmations, as well as his skeleton argument were all written in English, which indicates either that he is familiar with the English language or that he has access to, and is able to seek, such assistance as he needs.  We do not accept his contention that he did not understand the letter of 25 October 2016.

16.  On the facts of this case, we cannot actually see any additional basis for advancing a claim under BOR 2 other than those relied upon in respect of BOR 3 risk, torture risk, the persecution risk. Furthermore, up to now, the applicant still fails to identify what information or additional facts he could have provided, other than those he had already told the Director and the Board regarding the BOR 2 risk.  We are of the view that the Judge’s observations in [28] of the CALL-1 Form are justified.

17.  Having read the full decision of the Board, we are of the view that it was open to the Board to come to its conclusion that the applicant did not give an honest account as to how he left Pakistan.  On the basis of this conclusion as to the applicant’s credibility, the Board is correct in holding that there is no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatments which meet the high threshold as required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].  We cannot find any procedural irregularity or error of law in the Director’s and the Board’s conclusion regarding the possibility of internal relocation.  There is no reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  We agree with the Judge that leave to apply for judicial review should be refused.

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