RE SARWAR MUHAMMAD WAQAR

CACV 179/2018

[2018] HKCA 494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2018

(ON APPEAL FROM HCAL 500/2017)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 11 May 2018 refusing him leave to apply for judicial review.

2.  The applicant is a Pakistani.  He left Pakistan for Mainland China on 15 August 2009.  He entered Hong Kong illegally on 29 August 2009 and was arrested by the police on 30 August 2009.  He lodged his torture claim on 2 September 2009 and was released on recognizance on 10 September 2009.  His torture claim was withdrawn on 1 December 2009.  He was arrested again for failure to answer recognizance on 6 April 2011.  A non-refoulement claim was lodged again on 11 April 2011.  During the period between May 2011 and June 2015, he had repeatedly failed to answer recognizance and was arrested by the police as a result.

3.  The applicant’s claim was based on the fear that, if he returned to Pakistan, he would be harmed, or even killed, by the family members of his girlfriend.  It was his case that he was a Sunni Muslim, whereas the family of his girlfriend was Shia Muslim.  In 2004, there was an argument between the followers of the two groups, which escalated into a physical fight.  The applicant was said to have insulted the sect of his girlfriend’s family, as a result, the family members assaulted him and pressurized his father to disown him.  Because of the threats, the applicant fled his home village and lived in Sundar, Lahore for 4 years.  During those years, the applicant had occasionally returned to his home village and visited his family secretly.  In a visit to his home village in 2009, his girlfriend’s family members kidnapped him.  After he was rescued by his father, he fled Pakistan for Mainland China.  After he came to Hong Kong, the applicant married and had two children.

4.  By a notice of decision dated 8 April 2016, the Director of Immigration rejected the applicant’s claim.  The director considered that the applicant’s injuries from the assault and kidnap by his girlfriend’s family members were not serious and did not attain the minimum level of severity.  Although one of his girlfriend’s family members was a supporter of a political party in Pakistan, the director found no evidence of state involvement in the conflict between him and his girlfriend’s family.  Nor was there any evidence that the Pakistani government failed to exercise due diligence in preventing harm to him, investigating his complaints, or taking steps against his girlfriend family.  It was assessed that the applicant’s risk of being ill-treated upon his return to Pakistan was low.  The availability of state protection and the viability of internal relocation would also lower or negate the perceived risk of harm.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a letter dated 25 January 2017, the applicant was invited to submit additional facts in the assessment of his BOR 2 risk[4].  The applicant did not provide any.  By a notice of further decision dated 9 February 2017, the director proceeded with assessing the applicant’s BOR 2 risk, and determined against him.

6.  The applicant appealed to the Torture Claims Appeal Board against the director’s decisions.  An oral hearing was held on 20 April 2017.  After hearing the applicant, the board considered that applicant’s evidence was vague and inconsistent.  Given further the facts that he was able to live safely in Sundar, Lahore for 4 years, that he did not file any torture claim as soon as he left Pakistan, and that he absconded from immigration recognizance 5 times, the board found that the applicant was not honest and his evidence unreliable. It was concluded that the applicant failed to establish his claim.  The board also agreed with the director that the threat of harm faced by the applicant was not instigated by the Pakistani government and the injury suffered by the applicant did not attain the minimum level of severity.  The board dismissed the applicant’s appeal on 28 July 2017. 

7.  The applicant filed the form 86 on 8 August 2017 seeking leave to apply for judicial review against the decisions of the director and the board.  While the form 86 contained no grounds for relief being sought, the applicant set out the following grounds for relief in his supporting affirmation made on the same date:

(a) the lack of legal representation, in that he was not provided with any legal advice or assistance since the director’s first decision;

(b) the lack of language assistance, in that he was not given a translated copy of his Non-refoulement Claim Form as a way of “saving costs”;

(c) the absence of reasoning in rejecting his claim based on the BOR 2 risk; and

(d) The lack of fair hearing in that the director failed to arrange any supplemental screening interview during the assessment of his BOR 2 risk and because the director was excused from attending the oral hearing before the board.

8.  The deputy judge heard the leave application on 2 January 2018 and dismissed it on 11 May 2018.  After summarizing the facts and background of the case and giving due consideration of the director’s and the board’s decisions, the deputy judge gave the following reasons in refusing leave at paragraphs 15 to 28 of the CALL-1 form:

“15. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. The adjudicator analysed the material, claim and evidence and then explained his findings. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16. The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in his Form 86. There is only one ground in his affirmation directed at the Director; he failed to give reasons for rejecting the applicant’s BOR 2 claim and failed to arrange an interview before that rejection. I will refer to this ground later but it has no merit.

17. I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

18. The supporting affirmation lists the following as grounds for seeking leave:

(1) his lack of legal representation before TCAB/miscarriage of justice;

(2) the lack of language assistance given to him;

(3) Insufficient reason given for rejection of BOR 2 risk by the Director; and

(4) procedural irregularity/no Immigration Department representative at the appeal.

19. 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’.

20. 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.

21. 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 ‘Answer 35’ of 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. That form was completed with the assistance of a legal representative and an interpreter. During the process, interviews and appeal, there does not seem to have been any reason to suspect his claim was not translated properly. If there had, the applicant would have been able to particularise it. There is no merit in this ground.

22. The applicant’s third ground although it is a complaint against the Director, I will still deal with it. He suggests no reasons were given for rejecting the BOR 2 risk claim. The notice clearly refers to the Director’s findings in his previous decision of 8 April 2016 and applies it to Article 2. He rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of his feared treatment as set out in that previous decision. In any event, it was never the applicant’s case that he was at risk of harm from capital punishment inflicted by the government or that he faced harm from his government that would put his life at risk. Even if this was an application applicable to the Director, this ground would have no merit.

23. There are two parts to the applicant’s last ground. He submits the Director rejected his BOR 2 claim without an interview and he assumed the applicant received the previous letter inviting him to submit information and was able to read, understand and interpret it. The applicant admitted in open court that he did receive the letter and took it to a lawyer who told him that the date to reply to the letter had expired. The applicant also said in court that he had asked the Immigration Department for an extension of time on many occasions so he could submit additional information to support a BOR 2 claim. He even said that he had his lawyer make the request on his behalf but he was refused by the Immigration Department on many occasions. He said the Immigration Department refused him/his lawyer orally not by letter. He did agree however, this was not in his grounds in his affirmation but he did not know why.

24. I am sure if the applicant had a lawyer representing him privately then any request to the Immigration Department would have been done by correspondence and not orally. If there had been a request for an extension of time to submit documents, then there must have been documents to submit; the applicant has not been able to particularise what they are to support that very specific ground.

25. The second part to this ground was a criticism of the Director’s Department for not sending a representative to the appeal hearing. The Director would have submitted submissions to the TCAB as well as the applicant and then asked to be excused. In open court the applicant said this ground meant that it was unfair he was not given a lawyer to represent him during the appeal. He then added that the duty lawyer service had represented him badly, not presented his case word for word but had only paraphrased it.

26. In submissions during the oral hearing the applicant added that his BOR 2 claim was not properly considered and that he was not properly represented by an able lawyer. These grounds have not been particularised nor have any merit.

27. 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.

28. 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.”

9.  In the notice of appeal filed on 23 May 2018, the applicant, after referring to paragraph 17 of the CALL-1 form, stated the followings:

“With all due respect, I strongly disagree. This is because the reason for appealing to the TCAB [ie the board] is that I disagree with the decision made by the Director of Immigration. Given how the TCAB confirmed the decision made by the Director and I am appealing against the TCAB decision. I am appealing against both of the decisions. In particular, given how the Director has failed to arrange an interview before rejecting my BOR 2 claim and did not refer my case back to the Duty Lawyer Service so that I could obtain legal advice to apply for judicial review before I have fully utilized my channels of appeal, which was, at the Torture Claims Appeal Board.

The Judge further mentioned that the legal representation only extended to the claim process before the Director.  This would mean that the Director’s determination of my BOR 2 risk is also a claim process before the Director, hence there is no reason why I would not have obtained legal representation before the Director for the determination of my BOR 2 risk.  When my case was first referred to the Duty Lawyer Service, the then USM implementation only covered 3 applicable grounds, hence I was not advised as to my BOR 2 rights.  Hence, given the implementation of a new ground, namely BOR 2, half way through my case, I would believe it is paramount and only fair if my case was referred back to the Duty Lawyer Service for advice regarding the BOR 2 claim.  Even if the Court believes that legal representation should not be provided to me, the fact that the Immigration Department took no interest in translating the letter provided to me inviting me to submit additional information is also procedural unfair.”

10.  By a letter dated 29 May 2018, the applicant agreed that this appeal could be heard by a two-judge court.

11.  In compliance with the directions given by Barma JA on 25 June 2018, the applicant submitted his skeleton argument on 13 July 2018.  In the skeleton argument, the applicant repeated what he had stated in the notice of appeal.

12.  We heard the appeal on 6 August 2018.

13.  We note that, although the deputy judge took the view that the applicant adopted the wrong approach in seeking to judicially review the decisions of the director, she did consider the applicant’s grounds in relation to the director’s decisions and ruled that the ground had no merit.  For the reasons that we give below, we fully agree with the deputy judge’s analysis and endorse her conclusion that none of the grounds advanced by the applicant in his leave application was reasonably arguable.  In such circumstances, even if we are prepared to proceed on the basis that the deputy judge has over-stated the position, the applicant’s intended challenge against the director’s decisions is doomed to failure, and the deputy judge’s conclusion that no leave should be granted to judicial review against those decisions should be upheld. 

14.  As we mentioned earlier, when the director invited the applicant to submit any additional facts in the assessment of his BOR 2 risk, the applicant did not provide any.  In our view, in the absence of any additional facts, the director was perfectly entitled to proceed on the basis that the applicant’s case on the BOR 2 risk was also based on the primary materials relating to his other claims (prepared with legal representation).  On the facts of this case, we cannot actually see any additional basis for advancing a case on the BOR 2 risk, independent of the BOR 3 risk, the persecution risk, and the torture risk.  We do not accept that there is a reasonably arguable basis to challenge the fairness of the process based on the absence of an additional interview by the director in respect of the applicant’s BOR 2 risk.

15.  As we have held many times before, neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prababar (2004) 7 HKCFAR 187 nor the judgement of FB v Director of Immigration [2009] 2 HKLRD 346 prescribe that a CAT claimant or a claimant of BOR 2, BOR 3 or persecution risk has 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.  In the present case, there is no evidence before us that the Duty Lawyer Scheme refused, or improperly refused, to render assistance to the applicant when he approached them.  There is no evidential basis for us to accept the applicant’s bare assertion that the Duty Lawyer Scheme did not extend in all cases to the director’s assessment of BOR 2 risk.  The applicant has also not demonstrated why the director is under a duty to refer his case to the Duty Lawyer Scheme for legal representation. 

16.  Nor do we accept that it is meritorious for the applicant to complain about the failure of the director to provide a translated copy of his letter when he was invited to submit additional facts for the assessment of his BOR 2 risk.  We note that all court documents, including the form 86, the supporting affirmation, the notice of appeal, and the skeleton argument, were all written in English.  This indicates either that the applicant is familiar with the English language, or that he has access to, or is able to seek, language assistance when he needs it.  We note also that there was no interpretation clause in the affirmation that he made, which again suggests that he is able to understand the English language without the need of interpretation.  We consider that the applicant has exaggerated his language difficulty.

17.  Most importantly, the applicant was assisted by an interpreter during the oral hearings before the board.  If the applicant wished to provide any additional facts in relation to his BOR 2 risk, he could have done so through the assistance of the interpreter.  However, he did not do so.  He still fails to specify any additional facts for his BOR 2 risk in the application before the deputy judge and in this appeal.  We do not see any reasonably arguable basis to challenge the fairness of the process on the ground of the lack of language assistance.

18.  In any event, the crucial issue is the evaluation of risk of harm in light of the evidence before the board.  In the present case, the board found that the applicant was dishonest and his evidence was unreliable.  The applicant did not challenge this finding of the board, nor do we find any legal error in it. Based on this finding, the board was perfectly entitled to conclude that the applicant failed to establish that he would face a real risk of being subjected to ill-treatment which meet the high threshold as required by the law, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174.

19.  As we have said many times before, evaluation of risk of harm is primarily 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.  Judicial review is not an avenue for revisiting the assessment of the board in the hope that the court may consider the matter afresh in the absence of any legal error.  See: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

20.  Having considered the applicant’s skeleton argument as well as the material before us, we take the view that the deputy judge’s observations in the CALL-1 form are fully justified.  We cannot see any error of law or procedure in the proceedings before the director and the board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of the non-refoulement claim is a matter for the director and the board, not for the court.  We agree with the deputy judge that leave to apply for judicial review should be refused.

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