MOHAMMED KALIMUDDIN v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 507/2018

[2019] HKCA 232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 507 OF 2018

(ON APPEAL FROM HCAL NO 335 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.  This is an appeal against the decision of Campbell-Moffat J (“the Judge”) on 26 September 2018, refusing to grant the applicant leave to apply for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 5 November 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 12 February 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

BACKGROUND

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2012.  We shall not repeat the same here.

4.  Briefly stated, the applicant is an Indian national. He came to Hong Kong on 11 November 1996 as a visitor with permission to remain until 18 November 1996. He did not depart and overstayed since 19 November 1996. He was arrested by police on 10 May 2013.  He was subsequently referred to the Immigration Department for investigation and on 12 May 2013, he lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by a money lender Mohammed Rafique (“MR”) as he failed to repay the loan borrowed from MR.  He further claimed that MR was a member of the Trinamool Congress Party (“TCP”).

5.  By a Notice of Decision dated 9 September 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 11 October 2017, the Director also rejected the applicant’s claim on BOR 2 risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decisions.  After an oral hearing on 20 December 2017, the Board dismissed the appeal on 9 February 2018.  The Board found at [21] to [24] of its decision that the applicant’s case was not credible and contradicted his written evidence.  Most importantly, the applicant had stayed in Hong Kong for almost 20 years without seeking protection which showed that he was not a genuine asylum seeker and he would have gone on staying in Hong Kong had he not been arrested. The Board also found internal relocation was a viable option for the applicant as the grudge of MR against him would have dissipated for over such a long period of time. The Board confirmed the Director’s decisions and dismissed the applicant’s claim under all applicable grounds.

THE JUDGE’S DECISION

7.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 2 March 2018 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant mainly complained against the decision made by the Director in respect of his claim on BOR 2 risk.  He contended that he was not asked to make further submissions and he should have had assistance from the Director of Legal Aid (“DLA”) for the claim on BOR 2 risk because the refusal of legal aid was made prior to the BOR 2 proceedings.  The applicant further contended that he should have been given legal representation and an interpreter despite being resident in Hong Kong for 20 years.

8.  On 26 September 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [10] – [15] for her refusal to grant leave :

“ Grounds of review

10. The grounds of review are apparently limited to the BOR 2 process. The Applicant complains that he was not asked to make further submissions in respect of BOR 2; that he should have had assistance from the Director of Legal Aid (“DLA”) for BOR 2 because the refusal of legal aid was made prior to the BOR2 proceedings and, lastly, that he should have been given legal representation and an interpreter despite being resident in Hong Kong for 20 years. There is a possibility, that I have misunderstood the latter complaint as being in relation to BOR 2, when in fact the Applicant seeks to refer to representation on appeal and therefore I have considered both.

11. The Applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

12. The Applicant stated that he had been in communication with the authorities for many years. He should have received the letter of 5 July 2017, which was sent to the correct address. He has given no reason for why this would have resulted in him being unaware of the proceedings. In any event, BOR 2 is a limited head of claim. Nothing arising from the facts relied upon by the Applicant suggest that there would have been any merit in a claim under BOR 2. Indeed, any such suggestion could have been dealt with before the Adjudicator and it was not. There is no merit in this ground of review.

13. In so far as the Applicant suggests that he should have had legal representation and an interpreter before the TCAB, there is no absolute right to legal representation upon appeal. It is a matter for the DLA, who considers applications for assistance on a case by case basis. If the Applicant was prejudiced by a lack of interpreter, despite having been in Hong Kong for 20 years, then I am surprised he did not raise the issue with the Adjudicator. Indeed, the quotes provided by the Adjudicator of the submissions of the Applicant during the hearing, suggest his command of English is acceptable. Having heard him, the Adjudicator was sceptical of his veracity and more sceptical over the fact that he had taken 17 years to make a claim. No doubt this was also a reason for the refusal of legal aid. There is no merit in the suggestion that the Applicant was prejudiced in his appeal by reason of lack of legal representation or an interpreter. He was fully able to understand the proceedings and make submissions.

Conclusion

14. I have considered the papers and grounds carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

15. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

THE APPEAL

9.  The applicant filed the Notice of Appeal on 9 October 2018 in which he set out the following grounds of appeal :

(1)  The high standard of fairness was not achieved for his case. The Director had failed to refer his case to Duty Lawyer Service (“DLS”) so that he could obtain legal advice for his claim on BOR 2 risk.  When his case was first referred to DLS, his non-refoulement claim only covered BOR 3 risk, torture risk, and persecution risk and it was only fair if his claim on BOR 2 risk were also referred to DLS.

(2)  There was a lack of legal representation for his present appeal and the legal proceedings below.

DISCUSSION

10.  In light of the Judge’s finding, there is no substantial ground for the applicant to assert that he would face a real risk of harm or being subjected to ill-treatments which meet the high thresholds as required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

11.  As regards the fairness of the process before the Director and the Board, this Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The applicant already had the benefit of legal representation in presenting his case to the Director for his claim on BOR3 risk, torture risk and persecution risk.  On the facts of the present case, we do not find anything amiss arising from lack of legal representation in the process before the Director for his claim on BOR 2 risk and before the Board for the appeal.

12.  Further, the complaints advanced by the applicant are merely regurgitation of the arguments which were already canvassed by the Judge and rightly rejected by her at [13] of the CALL-1 form.

13.  In our view, the Judge’s observations and findings are well justified.  We cannot see any error of law or procedural unfairness or irrationality in the proceedings before the Director and the Board in handling the applicant’s claim on BOR 2 risk.  The grounds of appeal does not provide any reasonable argument for this Court to reverse the Judge’s 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.