RE TARIQ FARHAN

CACV 218/2017

[2018] HKCA 17

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 218 OF 2017

(ON APPEAL FROM HCAL NO 327 of 2017)

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JUDGMENT

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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 Woodcock on 22 September 2017 refusing leave to the applicant to apply for judicial review. The applicant came to Hong Kong illegally on 10 January 2016. He was arrested on the same date. On 13 January 2016 he lodged a non-refoulement claim. The claims were based on alleged threat of harm from supporters of the Pakistan Muslim League due to his support of the opposition party.

2.  The Director decided against the claims on 30 June 2016.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a supplemental decision of 31 March 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 5 May 2017, the Board dismissed the appeal on 12 June 2017.

4.  The intended judicial review was in respect of the decisions of the Director and the decision of the Torture Claims Appeal Board.  The Form 86 filed by the applicant on 26 June 2017 did not contain any grounds for seeking relief.  In his affirmation of 26 June 2017, he relied on the following grounds:

(a) Lack of legal representation; and

(b) Lack of language assistance.

5.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [22] to [29] of the CALL-1 Form,

“ 22. 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.

23. 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”.

24. 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. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. There is no substance in this ground.

25. The second ground is a complaint by the applicant the duty lawyer service would not provide him with a translation of NCF. This meant the applicant did not know if the interpreter provided correctly translated his evidence. This ground included a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a BOR 2 risk claim was in English and incomprehensible to him. This was the reason he was unable to reply in time. Therefore, he submits the government should provide an interpreter to the applicant as and when required, I quote from paragraph 8 of the affirmation “so as to avoid jeopardising my rights”.

26. The NCF 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 hearings and the decisions of the Director and the adjudicator his claim was not translated properly and this led to an injustice. There is nothing in this ground.

27. 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. The applicant added during the hearing before me that he approached the Immigration Department to submit more documents to support a BOR 2 risk claim but was told he was out of time. It transpired he did not possess any documents but wanted time to get documents from Pakistan. He did not ask the Department for more time. This indicates he knew and understood the Department’s letter relating to that claim. There is no substance to this ground.

28. 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.

29. 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.”

6.  In the notice of appeal of 3 October 2017, the applicant said he could not go back to his country because of the danger for his life.  He did not identify any error of the judge in rejecting his application.

7.  The applicant agreed by a letter of 9 October 2017 (written in English) that the appeal can be heard by two judges.

8.  Notwithstanding the direction from the Registrar of Civil Appeals, the applicant failed to lodge any written submissions in support of his appeal.

9.  We heard the appeal on 10 January 2018.

10.  The intended challenge based on lack of translation has no merit.  The judge adequately dealt with the same at [25] to [27] of the CALL-1 Form.

11.  As regards the challenge based on lack of legal representation, 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 HCAL 51 of 2007 prescribed 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.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.

12.  When he was invited to submit additional facts in respect of BOR 2 risk, he did so by sending additional documents on 30 March 2017 including a letter of 28 March 2017 issued by Pakistan Tahreek-e-Insaf of Lahore.

13.  That letter was duly considered by the Director in the Further Decision of 31 March 2017 and the Board in the appeal.  The Director as well as the Board gave sufficient reasons for not believing and not attaching weight to the letter.  

14.  The applicant’s claim under BOR 2 was actually founded on the same primary materials relating to his other claims (prepared with legal representation).

15.  The applicant had also advanced his case fully, including his case on BOR 2 risk, before the Board.  We do not find anything amiss arising from lack of legal representation in the process before the Board.

16.  Having considered the submissions of the applicant in light of the materials before us, we find the judge’s observations to be 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 judge that leave to apply for judicial review should not be granted.

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