RE MAHMOOD FAISAL

CACV 166/2018

[2018] HKCA 523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 166 OF 2018

(ON APPEAL FROM HCAL 653 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 Josiah Lam on 11 May 2018 in HCAL 653/2017 refusing leave to the applicant to apply for judicial review. The applicant is a Pakistan national. He first came to Hong Kong on 25 May 2012 illegally and surrendered to the police on the same day. He lodged a non-refoulement claim on 28 May 2012. The applicant’s claim was based on his fear of being harmed, or even killed, by Sheikh Amin (“SA”), the applicant’s former employer as the applicant had threatened to disclose to SA’s wife that he had sexually harassed a girl if he did not pay salary to the applicant.

2.  By the Notice of Decision dated 5 October 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director considered that the applicant’s fear would be unlikely to materialize because there was an absence of physical harm or ill-treatment to the applicant SA and this was indicative of a small future risk of harm upon his return to Pakistan. The availability of state protection and the possibility of relocation would further lower or negate the level of risk of ill-treatment.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By a further decision of 3 November 2016, the Director dismissed the claim under BOR 2.

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 17 January 2017, the Board dismissed the appeal on 31 August 2017.

4.  On 21 September 2017, the applicant sought leave to apply for judicial review in HCAL 653/2017.  The intended judicial review was in respect of the Director’s and Board’s Decisions.  The affirmation in support filed on 21 September 2017 provided the following grounds:

(1)  Lack of legal representation.

(2)  Lack of language assistance.

(3)  No reasons given by the Director in his further decision dated 3 November 2016.

(4)  Lack of fair hearing.

5.  On 11 May 2018, the judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and of the Board, the judge gave the following reasons at [28] – [40] for his refusal to grant leave:

“Ground (a): Lack of legal representation

28. The Applicant complained that he had not been provided with sufficient legal assistance.

29. In court, the Applicant confirmed he had legal assistance from the Duty Lawyer Scheme in 2015. However, there was no more legal assistance available to him after the Director had made his first screening decision dated 5 October 2015.

30. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[1] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process. There is no substance in Ground (a), which must fail.

Ground (b): Lack of language assistance

31. The Applicant complained that he had not been given sufficient interpretation/translation assistance.

32. In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the 9-page affirmation for judicial review. The Applicant said he told his friend what to write down. He did not have to pay that friend. The said documents were quite well-presented. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with documents for his claim. I am sure that was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents. Ground (b) fails.

Ground (c): No reasons given

33. The Applicant complained that the Director did not give reasons for his further decision dated 3 November 2016.

34. The Director’s further decision dated 3 November 2016 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 5 October 2015, where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 3 November 2016 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2) upon his return to Pakistan. The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 5 October 2015. Ground (c) fails.

Ground (d): Lack of fair hearing

35. The Applicant criticised the Director for not attending the appeal hearing before the Board on 17 January 2017. He deduced that the Director was not concerned about his case. There is no substance in this criticism.

36. The Applicant also criticised the Director for assuming he chose not to reply to the request for additional information and that the Director failed to arrange for a supplementary interview. However, the Applicant told me in court that he chose not to reply to the letter because he had no further proof to submit. He confirmed he had submitted all the information and materials of his claim to the Director and the Board. In the circumstance, the Applicant's complaint is without merits.

37. In court, the Applicant commented that the Director and the Adjudicator did not know enough of the real situation in Pakistan. He accused those decision-makers would only read from the Internet. The Applicant, however, could not be specific in his complaint. He failed to point out what country-of-origin information (“COI”) as considered by the Director and the Adjudicator was irrelevant or inaccurate.

38. The Applicant's complaints had no basis. On the contrary, having read the Director's decision plus further decision and the Board’s decision, I find both the Director and the Board had adhered to the high standards of fairness required of the Applicant's non-refoulement claim. Ground (d) fails.

39. In my judgement, the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

40. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

6.  In the Notice of Appeal dated 18 May 2018, the applicant did not provide any grounds of appeal.  He made a complaint that “I would like to reject and review the decision made by the Immigration Department on my non-refoulement claim, they disregard my dangerous situation.”

7.  In the skeleton submissions lodged by the applicant on 19 July 2018, he raised the following grounds of appeal:

(1)  He faced an “obvious” danger of being killed if refouled to Pakistan.

(2)  COI stated by the Board was just based on knowledge by their own state report.  The applicant further averred that: (a) Pakistani police and COI system are corrupt and ineffective and (b) security forces are unaccountable for human rights violations; and (c) he would be easily tracked down and killed in a Muslim country if refouled.

8.  Having considered the submissions of the applicant in light of the material before us, we found the judge’s observations to be justified.  We deal first with the matters raised in the notice of appeal and skeleton submission.

9.  It is clear that the first ground of appeal as set out in the Notice of Appeal is no more than the applicant’s expression of disagreement with the decisions made by the Director and the Board.  The judge was of the view that there was no proper basis for interfering in the decisions of the Director and the Board.  The applicant has not pointed out any error in the judge’s conclusion. 

10.  For the second ground, the applicant complained that the Director and the Adjudicator did not have enough knowledge of the real situation in Pakistan and he accused the decision-makers of only reading from the Internet. This complaint had been dealt with by the judge in [37] - [38] of the CALL-1 Form. We agree with the judge’s findings and take the view that the complaint has no substance.  We further note that the Director and the Adjudicator had considered a wide range of objective COI as duly set out in [13.4] and [13.5] of the Director’s decision and [73] – [104] of the Board’s decision.  We cannot see any reasonably arguable basis to suggest that the Director’s and Board’s treatment of COI has fallen below the required high standards of fairness as laid down in Secretary for Security v Prabakar (2004) 7 HKCFAR 187.  Ground 2 is also devoid of merit.

11.  We agree with the findings made by the judge, the Director and the Board that there is no risk of harm if the applicant is refouled and it is undisputable evidence that no harm was inflicted on the applicant when he was in Pakistan.  It is only the applicant’s assertion that if he returns to Pakistan, he would be harmed or tortured by SA.

12.  We do not see any error of law and procedure in the Board’s or the judge’s findings.  Having read the materials available before us, we are of the view that the findings of the Board and the Directors, as well as the observations of the judge, are justified.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Further, 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 do not see any reasonable basis to challenge the decisions of the Director and the Board by way of judicial review.  Accordingly, we agree with the judge that leave to apply for judicial review should be refused.

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