RE ISHFAQ MUHAMMAD

CACV 192/2020

[2020] HKCA 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192 OF 2020

(ON APPEAL FROM HCAL 76/2019)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 2 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 31 December 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 22 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 12 February 2016 illegally and was arrested by the police on 13 February 2016.  He lodged a non-refoulement claim on 17 February 2016. 

3.  The applicant’s claim was based on threats from his relatives arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [3] of the CALL-1 Form.

4.  By a Notice of Decision dated 22 November 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 23 October 2018, the Board dismissed the appeal on 31 December 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [38] of the Board’s Decision, the Board found that there were numerous inconsistencies and contradictions in the applicant’s evidence such that the reliability of his story was undermined.  The Board was also satisfied at [53] that state protection would be available for the applicant and at [76] – [78] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a form 86 on 9 January 2019 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 9 January 2019, the applicant advanced the following grounds for judicial review which was summarized by the judge at [10] of the CALL-1 Form:

(1)  The applicant did not have legal assistance for his appeal;

(2)  The Board’s decision was wrong in deciding that his case had no substance;

(3)  The Board did not look at his case afresh, but dismissed it because it was a land dispute;

(4)  The Board was biased;

(5)  The applicant had no language assistance, which was procedural unfairness. However, some of the other claimants were provided with translation; and

(6)  The Board did not give proper explanation about its consideration and decision

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave to apply for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [24] of the CALL-1 Form:

“11. In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

12. The applicant has not set out any exceptional circumstances.

13. Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

14. The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

15. The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision and he understood Board’s Decision himself.

16. I had put the above Board’s findings to him and asked him if he had any comments. He said that he had no comments.

17. It is obvious that the Board did not reject his evidence wholesale, but rejected his evidence on the salient facts in support of his claim, giving the reasons for his findings. Therefore, he has no factual basis for his claim.

18. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14

‘13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

19. The Court of Appeal held in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 that the applicant is not entitled to free legal representation or assistance at every stage of the proceedings as he was legally represented at the screening stage. He said in his grounds that his lawyer had advised him that he had no merits in his appeal. Ground (1) fails.

20. The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 that high standard of fairness does not require language assistance for the applicant. There is no evidence of other cases where translation was provided. Ground (5) fails.

21. Grounds (2) to (4) are his opinions without any evidence in support of them.

22. Ground (6) fails as the Board has given its reasons in support of its findings.

23. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

24. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to give him leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

10.  In the Notice of Appeal dated 16 June 2020 the applicant contended that:

(1)  The judge did not exercise caution and diligence in handling his case as a self-represented litigant and failed to acknowledge his language difficulty.  There was no interpretation service after the Director’s Decision and the CALL-1 Form was not translated for him;

(2)  Due to the lack of language and legal assistance, the applicant could not elaborate on his grounds in the affirmation.  However, the court still owed a duty of care towards him as a non-represented litigant who did not understand English;

(3)  The fact that there are no other avenues for a non-refoulement claimant to seek an appeal against a decision made purely against credibility is procedurally unfair; and

(4)  For the applicant to better understand the judgment, there should be an oral hearing with interpretation service.

11.  In the skeleton submissions dated 27 October 2020, the applicant reiterated the arguments raised in the notice of appeal.  He further contended that the Board found him to be incredible while the Director did not make such a finding.  The court chose not to intervene and that was unfair.

12.  The applicant agreed by a letter of 16 June 2020 that the appeal could be heard by two judges.  We heard the appeal on 24 November 2020.

Discussion

13.  In relation to the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15). Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any real prejudice in the leave application.

14.  As for the lack of language assistance, we note that the applicant was able to comply with the directions in this appeal and filed the necessary court documents in English.  He identified the alleged errors committed by the judge and made submissions on those alleged errors.  It is clear that either he is reasonably proficient in English or has access to language assistance.  In any event, the applicant failed to give sufficient particulars for the alleged prejudice from the lack of language assistance.

15.  As for the ground based on the alleged inconsistent findings on his credibility by the Board and by the Director and the ground about the lack of alternative avenue to appeal, we observe that those grounds were never raised as a ground for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)). 

16.  In the hearing before us, the applicant was given an opportunity to make oral submissions with the assistance of an interpreter.  The applicant has failed to substantiate any error in the decision by the judge that there was no public law error in the decisions by the Board and the Director.    

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.