RE MAQSOOD AHMED

CACV 312/2018

[2018] HKCA 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 312 OF 2018

(ON APPEAL FROM HCAL NO 896 of 2017)

________________________________

________________________________

________________

J U D G M E N T

________________

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

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 29 June 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 6 June 2016 and 29 May 2017 rejecting his non‑refoulement claim and the decision of the Non‑refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 14 September 2017 dismissing the applicant’s appeal against the Director’s decisions.  The applicant consented to the appeal being heard by a two‑judge court.

Non‑refoulement claim

2.  The applicant is a Pakistani national.  He sneaked into Hong Kong on 5 May 2014 and was arrested by the police on 21 June 2014 for illegally remaining in Hong Kong.  On 24 June 2014, he lodged a non‑refoulement claim based on his fear that if he were to return to Pakistan, he would be harmed or killed by the Mujahideen who are extreme Muslims.

3.  The basis of the applicant’s claim is this.  He was born in a village in Azad Kashmir in Pakistan.  His family belonged to a noble clan well respected by their fellow villagers.  The Mujahideen are extreme Muslims who planned to fight a “holy” war against India to liberate Kashmir.  The applicant was invited to join but he refused.  He claimed to have been frequently approached and threatened between 2010 and 2012 to the effect that he was under an obligation to fight the holy war and that should he refused he would be harmed.  On one occasion in 2012, the Mujahideen kidnapped him and beat him up.  He sustained bruises, swellings and redness on his body but he did not seek medical treatment in hospital or clinic.  He recovered on herbal medicine at home after a week.  Fearing for his safety, he fled home to stay in his relatives’ places and had not encountered trouble from the Mujahideen since. On 2 May 2014, he departed Pakistan for Guangzhou, China and eventually sneaked into Hong Kong.

4.  By Notice of Decision dated 6 June 2016 and Notice of Further Decision dated 29 May 2017, the Director rejected the applicant’s non‑refoulement claim on all applicable grounds namely, the torture risk[1], the BOR 3 risk[2], the persecution risk[3] and the BOR 2 risk[4].  On the applicant’s evidence and having regard to the objective Country of Origin Information (“COI”), the Director was of the view that there were no substantial grounds for believing that the applicant would be harmed, tortured or killed by the Mujahideen and, in any event, the level of any such risk would be lowered or negated by the availability of reasonable state protection and internal relocation options.

5.  The applicant appealed the Director’s decisions to the Board.  The appeal was conducted by way of rehearing on 8 August 2017.  The applicant elected to give evidence and answer questions from the Board with the assistance of an interpreter.  By its decision dated 14 September 2017, the Board dismissed the appeal with detailed reasons set out at [58] to [86].  On the totality of evidence, the Board found that the applicant was not a genuine non‑refoulement claimant.  The Board found that the applicant’s accounts of facts lacking in appropriate details and containing significant inconsistencies, contradictions and implausibility which did not satisfy the elements required to establish a case of torture risk, BOR 3 risk, persecution risk or BOR 2 risk.  The Board was further of the view that, even if the applicant’s claim were true, it did not amount to persecution, and the level of risk did not meet the standard of severity required to warrant protection under the BOR 3 risk and torture risk ground.  Nor did it amount to a real risk of being arbitrarily deprived of his rights under BOR 2, including the right of life.

Decision of the court below

6.  The applicant filed his Form 86 on 16 November 2017 seeking leave to apply for judicial review against both the decisions of the Director and the Board.  In the supporting affirmation filed on the same day, the applicant advanced the following grounds:

(1)  He was not provided with legal representation for his appeal/petition to the Board;

(2)  He was not provided with language assistance for translating his Non-Refoulement Claim Form as a result of which he was unable to find out whether the basis of his claim was translated properly by the interpreter;

(3)  The Director failed to give reasons for rejecting his claim under BOR 2 risk; and

(4)  There was a lack of fair hearing before the Board for not requiring the Director to attend the appeal hearing.

7.  The Judge refused to grant leave to apply for judicial review for the reasons in [10] to [16] of the Form CALL‑1 dated 29 June 2018[5]:

“10. For his complaint in ground (1) of not being given legal representation in his appeal process, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 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: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to give evidence before the Board and answered questions from the adjudicator without any difficulty. I do not find anything amiss arising from the lack of legal representation in the process of his appeal before the Board.

12. As for his complaint in ground (2) of not given a translation of his NCF so that he could find out whether the interpreter had properly translated the basis of his claim, it is plain that his NCF was prepared and completed on his instructions with legal representation, and in the absence of any particulars to show that the basis of his claim had indeed been wrongly or inaccurately translated or interpreted to the Board in his appeal, I find this ground of the applicant simply speculative and without merits.

13. As for ground (3) in which he complains of no reasons or explanations were given by the Director in rejecting his claim under BOR 2 risk, this is clearly wrong as the Director did in his Further Decision dated 29 May 2017 in the absence of any additional facts from the applicant despite his earlier invitation to do so proceed to consider his claim relevant to BOR 2 risk on the facts presented by him earlier with legal representation, of which the Director as primary decision‑maker was perfectly entitled to do and did properly with careful consideration. Furthermore, if indeed he had additional facts relevant to BOR 2 risk which he wanted to submit, he could have done so at his oral hearing before the Board but he did not, nor did he request for any assistance over that matter. This complaint of the applicant is plainly and factually wrong and without any merits.

14. Regarding ground (4) over the non‑attendance of the Director at the applicant’s appeal hearing before the Board, I fail to see any rationale for insisting the Director’s presence, as the mechanism for the appeal which is a rehearing of the applicant’s claim to be before a different person is actually a safeguard for fairness, and I fail to see how the applicant could be prejudiced or adversely affected by the non‑attendance of the director at his appeal hearing before the Board. I find no merit in this ground of the applicant.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Discussion

8.  The applicant set out his grounds of appeal in the Notice of Appeal dated 13 July 2018 and repeated them in his skeleton argument lodged on 21 September 2018.  The essence of his grounds of appeal was that the Judge erred in finding that there was no procedural unfairness in the decisions of the Director and the Board.

9.  The applicant argued that the fact that he was not provided with legal representation after the issue of the notice of Decision by the Director amounted to procedural unfairness contrary to the principle of “high standards of fairness” laid down in Secretary for Security v Sakthevel Prabakar[6].  It was submitted that Prabakar was decided over a decade ago at a time before the implementation of the Unified Screening Mechanism (“USM”)[7].  It was also submitted that the USM system had since evolved in that the BOR 2 risk had to be further considered by the Director after the torture risk, BOR 3 risk and persecution risk had been assessed and decided upon.

10.  The applicant submitted that, contrary to the Judge’s finding, he was not able to present his claim under the BOR 2 risk ground to the Director as did not have the benefit of legal representation and language assistance despite having been asked to provide additional information.

11.  We do not accept the applicant’s arguments.  His argument relating to the principle of high standards of fairness is untenable.  Firstly, Secretary for Security v Sakthevel Prabakar, ibid, remains good law.

12.  Secondly, this court has consistently held that a non‑refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], Re Lochan Subash[11] and Re Zafar Muazam[12].  There is no doubt that the applicant had been provided with legal assistance in the compilation of his non‑refoulement claim form and the interview with the immigration officer.  It is up the applicant to request the Duty Lawyer Service for further assistance in connection with his BOR 2 assessment, in which case the Duty Lawyer Service would assess the merits of his claim and other relevant circumstances in deciding on whether to provide further assistance.

13.  Thirdly, the appeal before the Board operated by way of rehearing, the Board acted properly to consider the applicant’s appeal on all applicable grounds, including the BOR 2 risk ground.  The applicant was assisted by an Urdu/English speaking interpreter at the hearing before the Board and at no time did he raise any complaint of language difficulty.  He provided oral testimony and had answered questions raised by the Board.  In any event, the applicant has not indicated what additional facts or grounds he would have provided to advance his claim on the BOR 2 assessment if he were given legal representation.  It is also important to note that the Board had found the applicant’s claim to be untrue and unreliable.

14.  There is neither irregularity nor unfairness in the way the Board dealt with the appeal.  For the above reasons, we conclude that the applicant’s grounds of appeal are devoid of merits.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused.

15.  Accordingly, we dismiss the appeal.