RE SATTAR ABDUL

CACV 53/2019

[2019] HKCA 613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 53 OF 2019

(ON APPEAL FROM HCAL NO. 1089 OF 2018)

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J U D G M E N T

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Hon Yeung Ag CJHC (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 23 January 2019, refusing to grant the applicant leave for judicial review.

Background

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 137.  We shall not repeat the same here.

3.  Briefly stated, the applicant is a Pakistani national.  He entered Hong Kong illegally by boat on 17 July 2009 and was arrested by the police on the same day.  On 20 July 2009, he lodged his non-refoulement claim.  On 9 October 2012, he was arrested for using a forged identity card and for taking up employment while being a person who remained in Hong Kong without the authority of the Director of Immigration (“the Director”) after having landed in Hong Kong unlawfully.  He was sentenced to a 14-month imprisonment. 

4.  The applicant’s torture claim was refused on 25 October 2013.  By his written representation of 4 November 2013, he lodged a claim for protection against cruel, inhuman or degrading treatment or punishment (“CIDTP”).  His CIDTP claim was taken as a non-refoulement claim under the unified screening mechanism (“USM”) after 3 March 2014[1].  The applicant’s claim was based on his fear that he would be harmed or even killed by family members of his girlfriend Siara because they opposed his relationship with her.

5.  By a Notice of Decision dated 6 July 2017, 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”) against the decision of the Director.  After the hearing on 3 May 2018, the Board dismissed the appeal on 7 June 2018.   The Board accepted that the applicant had a girlfriend named Siara and her family did not approve their relationship, but concluded that parts of his account of events were not plausible and exaggerated, e.g. the incident that Siara’s brother tried to kill the applicant and fired a shot at him when he was running away.  The Board further pointed out that internal relocation was a viable option.  For the aforesaid reasons, the applicant’s appeal was dismissed on all applicable grounds.

7.  On 13 June 2018, the applicant filed his Form 86.  In the supporting affirmation filed on the same day, he set out the following grounds for his intended challenge:

(i)   The process of non-refoulement screening did not meet the higher standard of fairness as laid down by the Court of Final Appeal in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187;

(ii)   The Duty Lawyer scheme had not provided him with a written translation of his Answer 35 despite his request for it;

(iii)   The Board’s Decision was not translated to him;

(iv)   The hearing bundle for the appeal was not translated to him; and

(v)   He was not advised of his right of appeal and how to proceed with the appeal.

The Judge’s decision

8.  On 23 January 2019, the Judge gave his 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 [11] – [19] for his refusal to grant leave:

“DISCUSSION

The Director’s Decision

11. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

12. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

13. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

14. The burden is on the applicant to set out the grounds in support of his application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.

15. Paragraph 10.a. is his comment only. It does not constitute a substantiated ground.

16. As to the issue of translation, I have made enquiry with the applicant in the hearing before me. He said that his wife, who is a Hong Kong resident, had explained the contents of the hearing bundle, the Director’s Decision and the Board’s Decision to him. He did not come across any problem at the hearing before the Adjudicator.

17. He had answered all the questions put to him by the Adjudicator and all his answers are true and correct.

18. Paragraph 10.e. is a non-point as he had appealed to the Board. He said he came across no problem at the hearing.

CONCLUSION

19.  For the reasons above, I find that the applicant’s application for judicial review has no reasonable chance of success. I refuse to grant him leave for judicial review. Accordingly, I dismiss his application.”

The Appeal

9.  The applicant filed the Notice of Appeal on 1 February 2019 and provided the following grounds of appeal:

“(1) It is unfair to expect me to rely on the assistance solely from my wife. My wife does not understand the legal proceedings and she could not have given me any advice or explain(ed) the legal definitions to me.

(2) The non-refoulement claim is not something that a layman can understand easily. Assumption that any form of language assistance is sufficient is an error in law.

(3) I reiterate that the fact that the Duty Lawyer scheme had not provided me with a written translation of my Answer 35 despite my request for it; the Board’s decision was not translated to me and the hearing bundle not being translated to me are all error in law. The fact that the Deputy Judge has failed to acknowledge the significance and unfairness should be rendered unlawful.

(4) Further, I was referring to the whole legal proceeding which extends to the application for leave to apply for judicial review, and not merely to the Board. The Deputy Judge has made his judgement based on presumptions only.

(5) I hereby request for the translation and language assistance required for the better understanding of my case as this is one of the primarily rights of a litigant.  I also request for an oral hearing with an interpreter arranged.”

10.  Pursuant to the direction of Master Au Yeung dated 26 February 2019, the applicant filed his written submissions on 25 April 2019 in which he just repeated the grounds of appeal as set out in the Notice of Appeal.

11.  At the hearing of the appeal on 28 May 2019, the applicant only submitted a certification of marriage of himself and a madam Wong Wai Ping, but made no further submission.

Discussion

12.  In his written submissions, the applicant is merely regurgitating the arguments advanced and rejected by the Judge. This Court would only reverse that decision if the applicant 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, see Nupur MST [2018] HKCA 524, CAMP 54/2018 at [14].  The Judge had dealt with the applicant’s complaints at [16] and [17] of the CALL-1 Form in which he found that the applicant did not come across any problem at the Board’s hearing and he had duly answered all the questions put by the Adjudicator. 

13.  We further note that all the court documents in relation to the judicial review application and this appeal were written in English, indicating that either the applicant is familiar with the English language or that he has access to such language assistance as needed, either from his wife and/or his friends.  Further, it is trite that the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].  The grounds of appeal have no merits and are plainly not arguable.

14.  The fact that the applicant was married to a local girl was not relied on before the Judge and in any event, that is not a relevant factor for the purpose of this appeal.

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