RE ALI ZEESHAN

CACV 342/2018

[2018] HKCA 1005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 342 OF 2018

(ON APPEAL FROM HCAL NO. 902 OF 2017)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

1.2  The applicant failed to comply with the directions of the Registrar of Civil Appeals dated 20 September 2018, and did not file his skeleton submission by 23 November 2018 as directed.  As a result, the hearing fixed for 21 December 2018 has been vacated.  The applicant only lodged his skeleton submissions on 12 December 2018 out of time.  We will deal with the appeal on paper.

2)  Background

2.1  The applicant is a national of Pakistan.  He entered Hong Kong illegally in December 2007.  He lodged a non‑refoulement claim on the basis that if he returned to Pakistan, he would be harmed or killed by the supporters of the political party Pakistan People’s Party (‘PPP’).

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [4] of the CALL‑1 Form.

3)   The Director’s Decision and the Director’s Further Decision

3.1  The Director of Immigration decided against the applicant’s claim on 26 February 2015.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution.

3.2  The Director further decided against the applicant’s right to life claim under Article 2 of the Bill of Rights (‘BOR 2’) on 9 February 2017.  The applicant did not submit to the Director additional information or materials to substantiate any right to life claim despite being invited by the Director to do so.

4)  The Board’s Decision and the Board’s further decision

4.1  The applicant appealed against the Director’s decision of 26 February 2015 to the Board on 9 March 2015.  After a hearing held on 2 February 2016, the Board dismissed the applicant’s appeal against the Director’s decision on 20 January 2017.

4.2  The applicant chose to remain silent throughout the Board’s hearing.  He submitted several pictorial reports which he said showed that Karachi, Pakistan was not safe, and that even school children were killed.  The articles reported terrorist attacks, mostly by the Talibans.  He agreed that the articles do not relate to him.  As the applicant chose to remain silent, there were no comments of the COI from him.

4.3  Following the Director’s further decision of 9 February 2017, the applicant appealed against this decision to the Board on 30 March 2017 out of time.  The applicant was allowed to submit further materials and submission in support of his further appeal.  The Board found that the applicant had provided nothing on facts or law that would add significantly to what was already canvassed in the previous Board’s decision.  The Board held that the Board’s previous decision applied.  There was no need to arrange another oral hearing on this occasion.  The applicant failed to establish his case on BOR 2 risk.

5)  Decision of the Judge

5.1  The applicant complained before the Judge that there was a lack of legal representation and language assistance both in the assessment of his BOR 3 and BOR 2 claims.  He further complained that his BOR 2 claim should not have been adjudicated by the same Board member who decided his BOR 3 claim.

5.2  The Judge held that even with the high standards of fairness there is no requirement that torture claimants are entitled to free legal representation at all stages of the proceedings.  The applicant was provided with the assistance of an interpreter during the Board’s hearing in February 2016, but he chose to remain silent.  The Judge further held that the applicant had no absolute right to an oral hearing and he cannot complain that he was not given an oral hearing regarding his BOR 2 claim.  On a fair assessment, given that the applicant’s case was abundantly clear and his case was the same as his case during the Board hearing in February 2016, there was no further need to arrange another oral hearing regarding BOR 2 right to life risks.  The Judge held that it was in the Board’s discretion whether the same or a different adjudicator was assigned for the applicant’s BOR 2 claims.  No systemic unfairness was found as a result.  It was for the applicant to prove that there was bias as a result, and there was none as such.

6)  Grounds of appeal

6.1  In summary the applicant stated in his Notice of Appeal the following grounds :

(1)  He did not receive notice to provide further information regarding his BOR 2 claims.  He was not provided legal assistance to deal with his BOR 2 claims.

(2)  The applicant felt he was unfairly treated as his BOR 2 claim was determined by the same adjudicator who rejected his BOR 3 claims.

(3)  It was unfair that he was not given language assistance for the whole legal process.

6.2  The contents of the applicant’s skeleton arguments reflect the contents of the Notice of Appeal.  The applicant repeated arguments that have already been dealt with by the Judge including :

(1)  It was unfair not to have an oral hearing for his BOR 2 claim.

(2)  The case that decided that there is no absolute right to free legal representation at all stages was decided more than 10 years ago and is outdated.

(3)  He did not know what BOR 2 meant as he was poor in English and he did not know what was going on.

7)  Our view

7.1  We will repeat the approach of this Court in dealing with cases of this nature :

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or otherwise plainly wrong.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2  In our view there are no merits in the applicant’s appeal.  The Board’s further decision and the decision of the Judge had already made the position clear.

7.3  Although the applicant claimed that he was not aware of the need to submit further documentation for his BOR 2 assessment, he had written a letter after the deadline for submission of further documentation to the Director stating his case of right to life claims.  

7.4  It is trite that high standards of fairness does not automatically entitle the applicant to absolute, free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14.  The applicant has not provided any authority to the contrary.

7.5  The Judge has also explained that there is no merit in the applicant insisting that there ought to have been an oral hearing for his BOR 2 claim, as it is ultimately a question of fairness.  There is no absolute entitlement to a BOR 2 oral hearing.  The applicant has not explained what additional facts or grounds he would have put before the Board at an oral hearing that could advance his BOR 2 claim: see Re Riaz Yasmeen, [2018] HKCA 576 at [21]-[22].

7.6  For the applicant’s complaint about not having language assistance throughout, he was clearly provided with language assistance during the oral hearing before the Board regarding his torture claim, but he chose to remain silent.  The Court also notes that the applicant has been corresponding with the Court in the English language.  There is no merit in this complaint.

7.7  The Judge has already held that it is the Board’s discretion whether or not assessment of the applicant’s BOR 2 claims will be determined by the same adjudicator for the applicant’s BOR 3 claims.  It is for the applicant to demonstrate if there is any real bias.  There is no merit in the applicant’s complaint. 

7.8  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.