RE SHERAZ KHAN

CACV 306/2018

[2018] HKCA 853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 306OF 2018

(ON APPEAL FROM HCAL 589/2017)

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JUDGMENT

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

1.  This is an appeal from the decision of Deputy High Court Judge Woodcock dated 6 July 2018 refusing to grant leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Pakistan.  He allegedly entered Hong Kong illegally on 21 March 2008 and was arrested by the police on 27 May 2008.  He lodged his torture claim on 5 June 2008.  Upon the commencement of the unified screening mechanism, the applicant’s claim was assessed on all applicable grounds.  His claim was based on the fear that, if returned to Pakistan, he would be harmed or even killed by the family members of his girlfriend because of their disapproval of the love affair between him and his girlfriend.  The factual background was summarized in [3] – [6] of the judge’s CALL-1 form [2018] HKCFI 1442.

3.  By a notice of decision dated 12 December 2016, the Director of Immigration rejected the applicant’s claim.  The decision covered the torture risk[1], the BOR 3 risk[2], the persecution risk[3], and the BOR 2 risk[4].

4.  The applicant appealed to the Torture Claims Appeal Board against the director’s decision.  An oral hearing was held on 3 August 2017, during which the applicant elected to give evidence.  The board did not consider the applicant’s evidence credible.  It took the view that the applicant’s story was an invention and the characters involved (such as the girlfriend and her family members) were fictitious.  It concluded that the applicant’s case was not genuine.  The appeal was dismissed on 31 August 2017.

The judge’s decision

5.  On 6 September 2017, the applicant applied to the court for leave to apply for judicial review.  The intended application was in respect of both decisions of the director and the board.  While the form 86 contained no ground for seeking reliefs, the applicant advanced the following grounds in his affirmation in supporting of the application:

(a) lack of legal representation in that he was not given legal representation in his appeal to the board and for the determination of his BOR 2 risk (sic);

(b) lack of language assistance in that he was not provided with a translated copy of his Non-Refoulement Claim Form;

(c) lack of communication among authorities in that he had not received the letter from the Immigration Department regarding the assessment of his BOR 2 risk and, in any event, he was told that the letter would be too technical for him to understand (sic); and

(d) wrongful exercise of case management power in that the board made an adverse finding on his credibility and that the board excused the attendance of the director at the oral hearing.

6.  Upon the request of the applicant, an oral hearing for the leave application was held on 21 February 2018.  After hearing the applicant, the judge refused to grant leave to the applicant to apply for judicial review.  Her reasons in refusing leave were set out in [13] – [20] of the CALL-1 form as follows:

“ 13. 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 was 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. The applicant submits this is a ‘violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice’.

14. 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. 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. The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases. Their assessment is on a case‑by‑case basis.

15. The applicant’s second ground is also without merit. In it,he complains the duty lawyer service is saving costs and refused to translate his non‑refoulement claim form despite his request for it. Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request. However, there was clearly no merit in this ground when the applicant said during the oral hearing that he had not yet asked the duty lawyer service for a translated copy of his form.

16. The applicant’s third ground is also without merit and struck out during the oral hearing. He accuses the Immigration Department of not sending letters relating to the BOR 2 risk claim when in fact his BOR 2 risk claim was dealt with at the same time as the other applicable grounds and rejected at the same time as the others on 12 December 2016; it was not dealt with separately.

17. The last ground criticises the Immigration Department for not sending a representative to the appeal. The Director would have submitted submissions to the TCAB as well as the applicant and asked to be excused. There is no procedural impropriety or unfairness to the applicant.

18. The last ground also criticises the adjudicator for doubting his credibility and his assessment of his credibility. Recently the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246 at (13) said that;

‘ Evaluation of evidence is essentially a matter for the Directorand 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. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.’

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant. There are no proper grounds for interfering with such a finding. There is no merit in this ground.

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

20. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

The appeal

7.  The applicant filed a notice of appeal on 10 July 2018 against the judge’s decision.  In the notice of appeal, the applicant sought to rely on the following grounds of appeal:

“ 1. I disagree that the ‘high standard of fairness’ was taken out of context. This is because it is clear that English is not my first language and I am in a foreign country due to my genuine fear of being harmed/killed if I were to return to Pakistan. Hence, I believe that I should be receiving some level of assistance such as information centres, resource centres, made available to me. The whole process has been very confusing and it has also been very frustrated that no authorities are willing to accept my case.

2. Furthermore, I disagree that evaluation of evidence should be a matter for the Director and the Board and the Court will have little say in this.  This is because the fact that case management has been wrongfully exercised should be considered a legal error itself and hence the Court should interfere.”

8.  By a letter dated 13 July 2018, the applicant consented that this appeal be heard by a two-judge court.

9.  The applicant lodged his Skeleton Submissions on 9 October 2018.  In the Skeleton Submissions, the applicant basically repeated (with some elaborations) the grounds of appeal as stated in the notice of appeal.

10.  We heard the appeal on 14 November 2018.

General principles

11.  Recently, in Re Litoun Mounsy [2018] HKCA 537 at [11]; Re Tutul [2018] HKCA 552 at [15]; and Re Islam Rafiqul [2018] HKCA 570 at [14], the general propositions for dealing with an appeal in non-refoulement cases were highlighted.  For the purpose of this appeal, the salient propositions are as follow.  

12.  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 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.

13.  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 of 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 was otherwise plainly wrong.

14.  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 light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Discussion

15.  In present case, the board rejected the applicant’s case based on its adverse finding on the applicant’s credibility. The judge, after rigorous examination and anxious scrutiny, found that there was no public ground for challenging the board’s decision. 

16.  The judge was correct in holding that Secretary for Justice v Sakthevel Prabakar (2004) 7 HKCFAR 187 does not give the applicant a right to legal representation at all stages and there was no procedural unfairness to the applicant on the facts of the present case, whether due to lack of legal representation or language assistance or other grounds.

17.  The board’s finding on credibility is not an exercise of its case management power.  It was the assessment of the board based on the evidence before it.  The rejection of the applicant’s evidence is within the power of the board and the judge correctly held that such finding was not tainted with legal error.

18.  Hence, the grounds set out in the notice of appeal and stated in the applicant’s Skeleton Submissions are without merits.  Having considered the materials before us, including the submissions of the applicant, we agree with the judge that leave should not be granted to the applicant to apply for judicial review.

19.  We dismiss the appeal accordingly.