CACV 336/2018
[2018] HKCA 951
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 336 OF 2018
(ON APPEAL FROM HCAL 703/2017)
__________________________
| BETWEEN |
| | MEHMOOD ADIL | Applicant |
| and |
| | TORTURE CLAIMS APPEAL BOARD/ | Putative |
| | NON-REFOULEMENT CLAIMS | Respondent |
| | PETITION OFFICE | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
__________________________
| Before: | Hon Yeung Acting CJHC, Hon Barma JA and Hon L Chan J in Court |
| Date of Hearing: | 7 December 2018 |
| Date of Judgment: | 14 December 2018 |
___________________
J U D G M E N T
___________________
Hon L Chan J (giving the Judgment of the Court):
Introduction
1. This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 18 July 2018 in HCAL 703/2017 refusing leave to the applicant to apply for judicial review. The applicant is a Pakistani national. He entered Hong Kong illegally on 12 May 2012 and was arrested by police on the same day. On 15 May 2012, he raised a non-refoulement claim. His claim is based on his fear that he would be harmed or even killed by the father of his lady friend one Misbah because of his relationship with Misbah.
2. The background facts are sufficiently set out by the Judge in a notification of the Judge’s decision (“the CALL-1 Form”) at [2018] HKCFI 1583. They are in brief as follows.
3. The applicant was born in 1992 and had education for 10 years. In 2009 the applicant came to know Misbah and had a secret relationship with her for three years. When her father learnt of their relationship, he forbade her from communicating with the applicant. He also phoned the applicant and threatened to kill the applicant. He also told the applicant to forget about his daughter and leave the country. The applicant said that Misbah’s father was politically connected to the police as well as a member of the Pakistan People’s Party (“PPP”).
4. Not long after those phone calls, the applicant was ambushed in his own home one morning by five or six men armed with guns. They beat him up for a few minutes until he was bruised all over and his face was bleeding. They said they were from the PPP. They searched his house and took away Misbah’s photographs. They told him to forget Misbah and leave Pakistan or they would kill him and his parents.
5. The applicant sought medical treatment at a hospital but was not hospitalized. He reported the attack to the police but did not know if the police investigated it.
6. Not long after the attack, he was arrested and detained by the police for about two weeks for no reason. He suspected that the police did it under the instructions of Misbah’s father as he had no other enemies. Moreover, the police kept on telling him to forget Misbah. The police released him on condition that he would leave Pakistan. He believed he was released so that Misbah’s father could kill him. He did not make any complaint to the higher authorities about his unlawful detention.
7. He stayed at home for a week. He then went to stay with a cousin for about two weeks at Attock city which is an hour away. He tried to avoid the PPP. His parents told him that the PPP people did come to his house looking for him. After that, he decided to leave Pakistan for his own safety. A friend arranged a visa for China for him and he left in May 2012. He then left Pakistan on 11 May 2012 and came to Hong Kong illegally on the next day through the Mainland. He made his non-refoulement claim on 15 May 2012.
8. By a notice of decision dated 8 September 2015, the Director of Immigration (“the Director”) rejected his claim. The decision covered BOR 3 risk[1], torture risk[2], and persecution risk[3]. By a further decision of 19 June 2017, the Director also rejected his claim on BOR 2 risk[4].
9. The applicant appealed to the Torture Claims Appeal Board (“the Board”). In an oral hearing of his appeal conducted on 11 August 2017, he said he had learnt from his friends that Misbah would get married in 2018 and once that happened, it would be safe for him to go home. He also wanted to return home because his family wanted him to be home.[5]
10. The Board noted that he had no means to contact Misbah and Misbah had not contacted him either. Furthermore, Misbah’s father had not made use of any available opportunity to kill him. Misbah’s father only wanted to teach him a lesson so that he would cut off his relationship with Misbah[6]. The Board also held that he could relocate within Pakistan and there was state protection which would lower the risk further.[7] The Board conducted two oral hearings for the appeal on 22 August 2016 and 11 August 2017. The Board, having considered all the materials and oral evidence of the applicant, assessed the level of risk as low and the feared ill-treatment as unlikely to materialize because the applicant had only encountered one incident of assault from the PPP men[8]. The Board dismissed his appeal on 22 September 2017 on the ground that he had failed to establish a case of non-refoulement under all applicable grounds.
The Judge’s decision
11. The intended application for judicial review was in respect of the decision of the Board. The form 86 filed on 3 October 2017 complained that the Board was in breach of procedural fairness by (i) unlawfully fettering its discretion by refusing applicant’s appeal on the grounds that they did not satisfy the requirement; (ii) acting in an unfair manner in dealing with the appeal; (iii) unreasonably and irrationally refusing the applicant’s claim or the dismissal was a result of procedural errors or unfairness; and (iv) failing to meet the greater care and duty owed to self-represented claimant.
12. In the supporting affirmation, the applicant further set out the following grounds for judicial review:
(1) Lack of communication as the applicant did not receive Immigration Department letters and the Director failed to give him an opportunity to claim BOR 2 risk.
(2) Lack of legal representation before the Board.
(3) The Board unfairly rejected the applicant’s credibility.
(4) The Board failed to properly consider country of origin information (“COI”) and ignored his evidence of pain and suffering.
13. On 18 July 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 [17] – [22] for her refusal to grant leave:
“17. The applicant’s first ground is a complaint against the Director, he submits he never received any correspondence from the Director inviting him to submit information if he wished to support a BOR 2 risk claim. However, there is no complaint of this nature from the applicant recorded in the adjudicator’s decision. In addition, he admitted in the oral hearing he requested that he received a lot of letters from the Immigration Department that were lying around his house but he could not read them. I find no merit in this ground.
18. The second ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition. 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”.
19. 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.
20. I have dealt the third ground above, even if the adjudicator should have put the applicant’s discrepancies to him for clarification before making a finding on his credibility, it is not fatal here. The adjudicator also considered his case on the basis his evidence was true and found even on his own facts he had failed to invoke the protection of BOR 2 and BOR 3 and could not prove he was at risk of persecution.
21. The applicant’s last ground is a complaint against the adjudicator for failing to properly consider COI information as well as his serious injuries and ill-treatment. There are no particulars from the applicant to support this ground and the adjudicator did refer to up-to-date and objective COI. The applicant did not suffer serious injury or ill-treatment. There is no merit in this ground.
22. 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 serious failure to adhere to a high standard of fairness; even if there was, the applicants claim is not reasonably arguable which is the test here. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. The same applies to the decision of the Director. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”
The Appeal
14. In the Notice of Appeal filed on 24 July 2018, the applicant put forward the following grounds of appeal:
“1. I disagree with the decision made by Deputy High Court Judge Woodcock because she has failed to see the significance in the level of unreasonableness and unfairness in my non-refoulement claim.
2. I could not be sure what letters I have received as none of those letters were ever translated to me. I do not understand why I do not get legal representation for the consideration of BOR 2 risk when I am certain that there are other non-refoulement claimants who get legal assistance for their consideration of BOR 2 risk by the Immigration Department. I do not understand the preferential treatment and how this would be considered ‘fair’ in my circumstances.
3. I strongly disagree that “even if the adjudicator should have put the applicant’s discrepancies to him for clarification before making a finding on his credibility, it is not fatal here.” What is important is not what is “fatal” but rather what is “unfair” and by putting improperly balanced weight on issues which led to wrongful exercise of case management power, my case should have been re-determined.
4. I therefore seek a reconsideration of my case to be heard by way of an oral hearing with an interpreter arranged.”
15. On 7 November 2018, the applicant lodged skeleton submission in which he repeated the grounds of appeal as set out in the Notice of Appeal.
16. We heard the appeal on 7 December 2018.
Discussion
17. On ground 1, there is no basis to suggest that the Judge had failed to appreciate the significance of the applicant’s non-refoulement claim. Having read the Judge’s decision and the Board’s decision, and the materials presented by the applicant, we agree with the Judge’s view that there is no error of law or procedure, or any evidence of procedural unfairness, or a failure to adhere to a high standard of fairness in the Board’s decision. We are satisfied that the Judge had duly assessed the applicant’s case and considered the application with rigorous examination and anxious scrutiny of the papers and grounds of the leave application. Ground 1 is devoid of merit and bound to fail.
18. On ground 2, the applicant argued that he was not provided with translation service and legal representation in pursuing the BOR 2 risk claim. He had not complained of lack of translation service until this appeal. He obviously had such service available in pursuing his non-refoulement claim. His true complaint is that he was not aware of the Director’s letter inviting him to provide further information on his claim based on BOR 2 risk. Hence, he did not deal with and respond to the invitation. If he was not aware of the invitation, he would not have instructed the lawyers then representing him about the invitation and thus would not be given any advice relating thereto. Since the problem arose out of his own failure to properly deal with the letters from the Director, he cannot now complain about the consequence. This argument is a repetition of an argument already advanced before and duly considered and rejected by the Judge at [17] of the CALL-1 Form. It has no merit.
19. On ground 3, the arguments relied upon by the applicant are merely repetitions of the arguments already advanced before and duly considered and rejected by the Judge at [20] of CALL-1 Form. The credibility issue was not the only ground for the Board to reject the applicant’s appeal. Since there cannot be any valid challenge to the alternative finding not based on credibility but based on the applicant’s case as if reliable, the challenge to the credibility issue is without merit.
20. This court has repeatedly emphasised that judicial review is not an avenue for revisiting the assessment of the Board and the Director in the hope that the court may consider the matter afresh even in the absence of any legal error: see Re Lakhwinder Singh[2018] HKCA 246; Re Md Himel also known as Muna Sarkar also known as Sahen[2018] HKCA 279; Re Munir Qaiser[2018] HKCA 341; Re Daljit Singh[2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400.
21. In our judgment, the applicant has failed to advance any effective arguments against the analysis of the Judge. None of the grounds set out in the notice of appeal and the applicant’s skeleton submissions constitutes a viable ground for reversing the Judge’s decision.
22. For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.
| (Wally Yeung) | (Aarif Barma) | (Louis Chan) |
Acting Chief Judge of
The High Court | Justice of Appeal
| Judge of the Court of
First Instance |
The applicant appeared in person
[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the violation of right to life under article 2 of the Hong Kong Bill of Rights.
[5] [42] of the Board’s decision.
[6] [40] of the Board’s decision.
[7] [44] and [48] of the Board’s decision.
[8] [52] of the Board’s decision.