SAID UMAIR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 44/2017

[2018] HKCA 82

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 44 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 286 OF 2017)

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JUDGMENT

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock on 29 September 2017 refusing leave to the applicant to apply for judicial review. The applicant entered Hong Kong illegally on 13 July 2013. He surrendered himself to the police on 31 July 2013. On 2 August 2013 he lodged a torture claim.

2.  The Director decided against his claim on 25 February 2016.  The intended judicial review was in respect of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office of 26 May 2017.  That decision was reached after a hearing on 27 April 2017.  The Board rejected the non-refoulement claims of the applicant based on the Hong Kong Bill of Rights as well as the Refugee Convention. 

3.  The applicant filed an application for leave to apply for judicial review on 13 June 2017.  In his affirmation in support of the application of 13 June 2017, he relied on these grounds:

(a)   Lack of legal representation;

(b)   Lack of language assistance;

(c)   Lack of communication,

4.  After hearing the applicant on 25 August 2017, the judge refused leave on 29 September 2017. She gave the following reasons in refusing leave at [20] to [28] of the Form CALL-1:

“ 20. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director and the adjudicator’s decision to be without fault. They analysed the material, claims and evidence carefully, logically and with caution. They applied the correct burden and standard of proof. I found no substance in the grounds of this application. The applicant had nothing to add or to say during the hearing for leave.

21. 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 is 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. He submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

22. 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 here. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The Duty Lawyer Scheme would have considered representing him in his appeal/petition if they were advised it had merit. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. There is no substance in this ground.

23. The second ground is a complaint by the applicant the duty lawyer service would not provide him with a translation of non-refoulement claim form. This meant the applicant did not know if the interpreter provided correctly translated his evidence. The form is completed by the applicant with the assistance of the duty lawyer service and an interpreter. It is completed in English hence the need for the assistance of the interpreter. The applicant is suggesting it should have been translated back into his mother tongue to avoid a potential injustice. There is no suggestion from the applicant that from the hearing and the decision of the Director his claim was not translated properly and this led to an injustice. His claim is repeated in detail in the Director’s decision and if it was inaccurate he would have known. There is nothing in this ground.

24. He also submits he was not given legal assistance or language assistance throughout his appeal with the TCAB. He goes on to say he should have been entitled to the services of an interpreter provided by the Hong Kong government during the process so as to avoid jeopardising his rights. He had an interpreter throughout the hearing of the appeal. It is true he was in person but I am not privy to the reasons the duty lawyer scheme did not represent him if he did make such an application to them. There is nothing in this ground.

25. As for his demand for an interpreter at any time, this stems from his claim he could not read nor comply with the Immigration Department’s letter relating to his BOR 2 risk claim. However, I see no complaint raised with the adjudicator nor a request to the Department for language assistance or help to explain the contents of its letter at the time it was received. There is no substance to this ground.

26. His third ground entitled a lack of communication, refers to the applicant not receiving decisions and letters in the post from the Immigration Department with regard to a claim under BOR 2. The applicant gives no further details such as and including an attempt by him to get copies from the Immigration Department. The conversation we had during the hearing was confusing including an admission that he had in fact received letters but did not understand them and had done nothing about them. My view is that the Director and the adjudicator in the decisions subject to this application have not dealt with a BOR 2 risk.

27. I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

28. 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.”

5.  According to court record, the CALL-1 form and the sealed order of the judge were sent by post to the applicant on 29 September 2017 according to the address he set out in his Form 86 at Room B, 3/F, 287 Yu Chau Street, Sham Shui Po, Kowloon.

6.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.

7.  On 20 October 2017, he filed a summons for extension of time to appeal[1].  His application was supported by an affirmation of the same date.  In the affirmation, he said he only received the order on 9 October 2017.  He did not explain why he failed to get it earlier in accordance with the ordinary course of post.

8.  He gave a new address in his summons: Flat 6, 1/F, Block B, Ho Shun Yee Building, No.9 Fung Yau Street East, Yuen Long, New Territories.  He did not explain in his affirmation the reason for his change of address.

9.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant, see Islam Raja Rais v Director of Immigration HCMP 881 of 2017, 26 June 2017. 

10.  We cannot accept his bare assertion that he only received the court order and the CALL-1 Form on 9 October 2017. 

11.  In the absence of an adequate explanation for the delay, extension of time should not be granted unless the applicant has a real prospect of success in the intended appeal: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125; Wong Yuk Man v Ng Leung Sing HCMP 3217 of 2015, 22 January 2016.  The same principle applies in non-refoulement cases: see Re Akram Mohammad HCMP 1601 of 2016, 10 August 2016; Re Khandakar Ali Muzaman HCMP 2452 of 2016, 22 November 2016; Islam Raja Rais v Director of Immigration HCMP 881 of 2017, 26 June 2017; Sheetal Neupane v Director of Immigration CAMP 30 of 2017, 9 November 2017. 

12.  The applicant did not attach any draft notice of appeal to his summons or affirmation.

13.  He lodged written submissions (dated 9 November 2017 and received by the court on 13 November 2017) to support his application.  In those submissions, written in English (like all the documents he placed before us), he complained about the judge’s conclusion that the lack of legal representation at the appeal stage was not procedurally unfair.  He said he had no legal representation at the further determination by the Director on “BOR 2 risk”.  He also said the judge was wrong in dismissing his contention based on lack of proper interpretation in the proceedings in the Immigration Department and the Board.  Lastly, he complained about the non-attendance of the representative for the Director of Immigration at the oral hearing before the Board.

14.  We do not see any merit in these arguments.  There was no complaint about interpretation before the Board.  In any event, the applicant was able to proceed in English and all his documents were written in English. He did not pinpoint any inaccuracy in his Non-refoulement Form.  There is no merit in the complaint of lack of language assistance.

15.  As regards legal representation, he did not explain why he did not use the service of lawyers and proceeded with the appeal before the Board in person.  The fact that he could have legal representation was made known to him.  He had been represented by the Duty Lawyer Service as the Notice of Decision of 25 February 2016 was sent to the applicant through them.

16.  The applicant also complained about the Board excusing the Director from attending the hearing.  In our judgment, it is not a valid ground of appeal.  The conduct of the proceedings before the Board is a matter of case management by the Board.  It is perfectly open to the Board to decide, after reading the written materials, that the Director’s attendance could be excused.  The applicant did not explain how the absence of the Director had occasioned any unfairness to him.  If he wished to elicit information from the Director, he could have applied to the Board for the same.  It does not appear from the record that he had done so.

17.  Reading the judge’s observations in the CALL-1 Form together with the detail Reasons given by the Board in its Decision of 26 May 2017 as well as the Notice of Decision of the Director of 25 February 2016, we found the judge’s observations to be justified.  We do not see any errors of law or procedures in the proceedings before the Board.  We agree with the judge that, on the materials before Her Ladyship, leave to apply for judicial review should not be granted.

18.  The applicant lodged a second set of submissions on 5 January 2018.  In those submissions, he referred to a Further Decision by the Director of 20 October 2017 and he said he had appealed against that Further Decision and the decision of the Board was pending.  He also referred to the refusal of legal aid by the Director of Legal Aid on 29 August 2017 and his appeal against that refusal (scheduled to be heard on 26 January 2018).  These were new materials which had not been placed before the judge.  At today’s hearing, we were told that the Legal Aid Appeal had been dismissed.

19.  An appeal is not a fresh application. This Court’s function is to examine if the judge made any errors in her decision.  If he had no ground to challenge the judge’s decision, the applicant cannot bring an appeal on the basis that there is another pending appeal before the Board.  Neither can his legal aid appeal be of any relevance.  Legal aid application is processed on a merit test.  On the basis of the materials placed before us, the case of the applicant has no merit and it was dismissed. 

20.  For these reasons we do not see any prospect of success in the intended appeal.  We would not grant extension of time for a hopeless appeal to be lodged.  The applicant’s summons filed on 20 October 2017 is dismissed accordingly.