RE ABDUL AZIZ

CACV 278/2018

[2018] HKCA 702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 278 OF 2018

(ON APPEAL FROM HCAL 240 OF 2018)

------------------------------

------------------------------

____________________

J U D G M E N T

_____________________

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 22 June 2018 refusing him leave to apply for judicial review. The applicant is a Pakistani National. He entered Hong Kong illegally in or about July 2006. He was first arrested by the Customs & Excise Department (“C&E) on 20 December 2006 and was convicted of the offence of dealing with goods to which the Dutiable Commodities Ordinance applies. On 26 March 2007, the applicant was arrested again by C&E officers for the same offence and was sentenced to six months’ imprisonment, with four weeks’ suspended sentence activated from his previous conviction.

2.  In August 2007, the applicant made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”).  This claim was rejected on 22 May 2012.  The applicant filed a petition against the decision on 5 June 2012.  On 4 July 2012, the petition was refused by the Adjudicator (Torture Petitions) of the Petition Team. 

3.  On 21 March 2013, the applicant lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by one Nasir, who had a land dispute with the applicant’s employer Afzal.  The applicant had acted as the representative of Afzal in legal proceedings regarding the land dispute.  The applicant also said that the Pakistani police would arrest him because he had jumped bail regarding a rape allegation against him before he left Pakistan.

4.  By the Notice of Decision dated 29 June 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director considered that the low intensity and low frequency of the alleged ill-treatment from Nasir, his people, and the Pakistan police indicated a small future risk of harm, such that the applicant’s fear would be unlikely to materialize upon his return to Pakistan.  It was also considered that the availability of state protection and the possibility of relocation would lower or negate the perceived risk.  This decision covered the BOR 3 risk and the persecution risk.

5.  By a Notice of Further Decision dated 4 July 2017, the Director also assessed the applicant’s claim in respect of the BOR 2 risk and decided against the applicant.

6.  The applicant appealed to the Torture Claims Appeal Board against the Director’s decisions.  An oral hearing was held on 16 November 2017.  By its decision dated 1 February 2018, the Board agreed with the Director’s assessment (based on objective COI) that internal relocation was available and reasonably open to the applicant upon his return to Pakistan, so that it was not necessary for the Board to consider the question of state protection.  The Board was not satisfied with the applicant’s evasive manner in answering questions and the lack of detail in his evidence over the land dispute, and took the view that this seriously undermined the credibility of his claim.  The applicant was thus unable to discharge the burden upon him to establish any of his claims on persecution risk, BOR 2 and 3 risks and his appeal to the Board was therefore dismissed.

7.  The intended judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed by the applicant on 14 February 2018 did not itself contain any grounds for judicial review but referred to his affirmation filed on the same day, which set out four broad grounds for judicial reviewwhich can be summarized as follows:

(i)   lack of legal representation in his appeal before the Board;

(ii)   lack of language assistance;

(iii)   the Director had failed to give reasons for his decision on BOR2 risk; failed to explain how he balanced his consideration of COI and was absent from the appeal hearing before the Board. The applicant also alleged that he never received the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk;

(iv)   the Adjudicator was prejudiced, was wrong to disbelieve him, ignored his medical condition and failed to give a proper explanation for refusing his appeal. 

8.  The Judge heard the application for leave to apply for judicial review on 4 June 2018.  After summarizing the background of the case and giving consideration to the decisions of the Board, the Judge gave reasons in refusing leave at paragraphs [38] to [53] of the CALL-1 form:

“Discussion

38. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

39. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[1]

Lack of legal representation

40. The Applicant complained that he had not been provided with legal assistance for the appeal. In court, the Applicant confirmed he had legal assistance from the Duty Lawyer Service up to the Director's decision dated 29 June 2016. There was no more legal assistance available to him thereafter.

41. 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.[2] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

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

43. In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and to deal with English documents. 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 English documents.

Complaints against the Director

44. The Applicant alleged he had not received the Director’s letter inviting him to submit additional facts for the consideration of BOR2 risk.

45. According to the address supplied by the Applicant to the court, he had been living at the same address since 2016. There was no reason why the Applicant had not been able to receive the said Director’s letter dated 12 June 2017 when there was no complaint of any other missed post. Nevertheless, the Applicant confirmed he had already submitted all information and documents to the Director and the Adjudicator for their consideration of his non-refoulement claim. Therefore, the Applicant was not deprived of any chance to present his case fully to the Director and the Adjudicator, whether he had received the said letter or not.

46. The Applicant complained that the Director did not give reasons for his decision on BOR2 risk.

47. The Director’s further decision dated 4 July 2017 relating to BOR2 risk was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 29 June 2016, 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 4 July 2017 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). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 29 June 2016.

48. The immigration officer acting on behalf of the Director stated clearly what COI he had referred to. It is clear from his report dated 29 June 2016 that he had a balanced consideration of the relevant COI. His finding, conclusion and decision in this regard are all reasoanble. It is unreasonable to require the officer to describe his mental process in the balancing exercise. It is not necessary.

49. The Applicant also criticised the Director for not attending the appeal hearing before the Adjudicator on 16 November 2017. The Applicant cannot show how the Director’s absence would prejudice his appeal. There is no substance in this complaint.

50. I have reviewed the Director's decision and further decision under ‘rigorous examination and anxious scrutiny’. I am satisfied he had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director, who had 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 Director was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Director had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Complaints against the Adjudicator

51. The Applicant complained the Adjudicator ignored his medical condition. That is not true. The Adjudicator was alive to his claimed health condition on the day of the appeal hearing. He was prudent enough to ask the Applicant if he felt able to participate in the hearing. The Applicant did not indicate that he was unable to.[3]

52. The Adjudicator gave clear reasons for his decision against the Applicant with respect to persecution risk, BOR3 risk and BOR2 risk. There is no evidence to show the Adjudicator was prejudiced. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied he had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who had 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 Adjudicator was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

53.   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.”

9.  The applicant lodged his Notice of Appeal on 29 June 2018, in which he did not provide any grounds of appeal except to state that his life would be in danger if he were to return to Pakistan.

10.  The applicant agreed by letter of 16 July 2018 that the appeal can be heard by two judges.

11.  In compliance with the directions given by the Registrar of Civil Appeal on 6 August 2018, the applicant lodged his skeleton submission on 21 August 2018.  In the skeleton submission, the applicant contended as follows:

(1)   The applicant has a genuine fear that he would be harmed or even killed if refouled to Pakistan. The applicant requested the Director to reopen and reconsider his case.

(2)   The Director’s decision to reject his non-refoulement claim was unfairly made as the immigration officer disliked him.

12.  Neither the ground stated in the Notice of Appeal, nor the matters mentioned in the skeleton argument amount to valid grounds of appeal.  The applicant has identified no error in the reasons given by the Judge for his decision.  Nor has he pointed out any ground on which this court should interfere with the Judge’s decision. 

13.  This court has often said that a judicial review is not a further avenue of appeal.  Here the Director and the Board (who are the primary decision makers) had already assessed the risk of harm to the applicant in their respective decisions, as summarized in [24] – [33] of the CALL-1 Form.  The applicant has failed to show that the Director and/or the Board committed any error in arriving at this conclusion.  Having reviewed the materials us, we do not find any basis to disturb the conclusion of the Director and the Board that there is no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatments or harm which meets the high threshold required by the law, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraph 172 – 174.

14.  The applicant’s contention that the Director’s decision was unfairly made is without basis and devoid of merit.  We are satisfied that the procedure of the United Screening Mechanism had been duly followed in this case and the applicant was given every reasonable opportunity to establish his case: (i) he was given oral hearings before the Director and the Board; (ii) his claim was properly heard and assessed; (iii) the Director and the Board had taken into account COI, evidence of torture, the vulnerability of the applicant to torture if returned and the applicant’s credibility.  In the circumstances, the applicant’s compliant regarding procedural unfairness and the lack of high standard of fairness is not reasonably arguable.

15.  Having considered the materials before us, we are satisfied that the Director and the Board had fully reviewed the applicant’s claim.  We find no errors of law or procedure in the proceedings before the Director or the Board.  Nor is there any 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 the Board.  There is no reasonable basis to challenge the decisions of the Director and the Board.  We take the view that the Judge’s observations in the CALL-1 form are justified and agree with the Judge that leave to apply for judicial review should be refused.

16.  For these reasons, we do not see any prospect of success in the intended judicial review, and dismiss the appeal accordingly.