WAKEEL AMJAD v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 538/2019

[2020] HKCA 419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 538 OF 2019

(ON APPEAL FROM HCAL 2806/2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“the Judge”) on 18 November 2019 in HCAL 2806/2018 refusing leave to the applicant to apply for judicial review.

2.  The appeal hearing was initially fixed for 3 March 2020.  Due to the public health risk arising from the COVID-19 pandemic and the general adjournment of proceedings, the appeal hearing was adjourned to 18 May 2020.   Pursuant to the directions of the Registrar of Civil Appeals given on 12 December 2019, the applicant shall lodge with the court 3 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 20 April 2020.  Despite the letter sent by the court on 8 April 2020 reminding the applicant of the aforesaid directions, the applicant failed to lodge her written submission.  The Registrar further directed that in the event of the applicant’s failure to lodge written submission, the applicant shall be deemed to waive her right to have an oral hearing and this Court shall proceed to determine the appeal on paper only.

Background

3.  The applicant is a national of Pakistani.  He entered into Hong Kong illegally on 7 June 2016 and surrendered to the Immigration Department on 16 June 2016. He lodged a non-refoulement claim by written signification on 11 August 2016 on the basis that he would be harmed or killed by the people of Pakistan Muslim League-N (“PMLN”) because he supported an independent candidate, Rao Muhammad Ashraf (“Rao”) in a local government election for the Chairman of the Union Council in October 2015 (“the 2015 Election”). 

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 2814.  We shall not repeat the same here.

5.  By the Notice of Decision dated 2 March 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk. 

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 14 November 2018, the Board dismissed the appeal on 28 November 2018.  The Board found the applicant to be evasive and he had exaggerated his importance and involvement in the 2015 Election campaign for Rao.  The Board did not accept that the applicant had received any death threat or was shot at by PMLN members or that the police refused to file a report regarding the incidents.  The Board did not find any real risk of harm should the applicant return to his home country and his claims for non-refoulement protection were not made out on any of the applicable grounds.

The Judge’s decision

7.  On 7 December 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decisions of the Director and the Board.  He set out the following grounds for his intended challenge:

(1)  The Director had failed to give sufficient weight to the fact that the Pakistani police were controlled by individuals who were politically active.

(2)  The Director’s decision that the Pakistani government had taken steps to monitor the police and improve their effectiveness was unfounded.  The Pakistani police were in fact corrupt and incompetent.

(3)  The high standard of fairness required the Director to have regard to whether reasonable protection had in fact been provided to the applicant, rather than what the Pakistani government was capable of providing.

(4)  The Board erred in concluding that the ill-treatment feared by the applicant did not amount to persecution risk, torture risk, BOR 2 risk and BOR 3 risk, plus no detailed reason was provided for its rejection of the applicant’s claims.

(5)  The Board erred in law in a similar way as the Director.

8.  The Judge heard the application 31 May 2019 and by the CALL-1 Form of 18 November 2019, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [13] – [20] of the CALL-1 Form:

“DISCUSSION

The Director’s Decision

13.  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 was able to speak freely and tell his story fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had explained the hearing bundle and the Board’s Decision to him.

16.  I explained the Board’s reasons for refusing his appeal and asked him if he had any comments. He said that he had no comments.

17.  It is obvious that as the Board rejected all of his evidence on the salient facts in support of his claim. 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.  All of his grounds above are his opinions without any evidence to support them.

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

The Appeal

9.  In the Notice of Appeal filed on 25 November 2019, the applicant advanced the following grounds of appeal:

(1)  The Judge did not hear him in person.

(2)  There was a lack of legal representation and language assistance for his claim on BOR 2 risk which was essential for his claim before the Director.

(3)  The further decision was determined by the Director without ensuring that he was aware of his rights as regards BOR 2 risk and with no legal representation, he was unable to understand the process and the reasons for the rejection of his claim.  The Board’s decision was also not interpreted to him.

(4)  The Court twisted the idea of seeking legal representation from the Duty Lawyer Service as it was provided to him by referral from the Director.  He should be notified of the change in policy or method of referral.

Discussion

10.  Ground 1 is a baseless accusation.  We note from the court file and the CALL-1 Form that the Judge heard the applicant’s leave application in person on 31 May 2019 and at the hearing, the Judge had explained the Board’s decision to the applicant.  The Judge further asked the applicant if he had any comment on it and the applicant replied no, see [16] of CALL-1 Form.

11.  Grounds 2 and 3 are not consistent with what actually happened.  The applicant was assisted and represented by the Duty Lawyer Service  when he was interviewed by the immigration officer and his case was assessed on all applicable grounds including his claim on BOR 2 risk.  His case was duly considered by the Director and his claims were rejected on all applicable grounds by the Director’s decision of 2 March 2018.  There was no further decision by the Director in relation to his claim on BOR 2 risk.

12.  Ground 4 is misconceived.  This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgement of FB v Director of Immigration HCAL 51/2007 prescribes that a CAT claimant is entitled to an absolute right of free legal representation at all stages of the proceedings.  Secondly, the court would not advise a litigant or in any way interfere with his decision as to whether to engage a legal representative.   If he decides to do so, he is obliged to take his own step either to apply for legal aid or to engage a private lawyer.

13.  In any event, we have carefully reviewed the Judge’s decision and are satisfied that the Judge had reviewed the Board’s decision with anxious scrutiny and rigorous examination and we find nothing amiss from his decision.

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