CACV 72/2019
[2019] HKCA 679
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 72 OF 2019
(ON APPEAL FROM HCAL NO 810 OF 2018)
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Before: Hon Barma JA and Hon Bharwaney J in Court
Date of Hearing: 10 June 2019
Date of Judgment: 17 June 2019
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J U D G M E N T
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Hon Bharwaney J (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 1 February 2019 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 30 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 7 September 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Pakistan. He entered Hong Kong on 13 September 2012 illegally and was arrested by the police on 15 September 2012. He lodged a torture claim on 17 September 2012 which was refused on 24 January 2013. His appeal against the refusal for his torture claim was dismissed on 11 April 2013. He lodged a non-refoulement claim on 21 November 2013 and 16 December 2013.
3. The applicant’s claim was based on threats from 3 cricket players who were jealous of the applicant’s achievement in the cricket team. They kidnapped the applicant and asked him to leave his cricket team. The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.
4. By a Notice of Decision dated 7 September 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], BOR 3 risk[2] and the persecution risk[3].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 8 March 2018, the Board dismissed the appeal on 30 April 2018 (“Board’s Decision”).
6. At [28] of the Board’s Decision, the Board accepted that the applicant’s case was credible. However, the Board held at [32] that because the applicant has stopped playing cricket, there is no ground for the three cricket players to be jealous of him anymore. The Board was also satisfied at [37] that state protection would be available for the applicant and at [39] that internal relocation would be viable.
The deputy judge’s decision
7. The applicant filed a form 86 on 9 May 2018 which contained no ground for seeking relief.
8. In the affirmation in support of the leave application dated 9 May 2018, the applicant advanced the following grounds for judicial review which are summarised below:
(1) Lack of legal representation in his appeal to the Board and the judicial review application;
(2) Lack of language assistance in his appeal to the Board;
(3) The applicant was not informed of any decision concerning him. This is because there was no one to interpret the content of the decision to him after the Director’s Decision; and
(4) The appeal bundle was served on the applicant only shortly before the Board hearing and there was a lack of translation and interpretation. He did not understand the document.
9. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [28] to [38] of the CALL-1 Form:
“28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”
30. The Applicant complained there was a lack of legal representation for his appeal to the Board.
31. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
32. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
33. The Applicant complained the appeal bundle was served on him only shortly before the Board hearing.
34. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence that the rules had been breached.
35. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
36. The Applicant had not complained to the Adjudicator or asked for adjournment during the Board hearing. He failed to show he really needed more time to prepare for his appeal. On the contrary, it was evident from the Adjudicator’s report that the Applicant had prepared himself for the Board hearing, where he adopted all the information he had submitted and also gave evidence before the Adjudicator.
37. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts and applied the law correctly. He considered the Applicant's claim carefully. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints can stand.
Conclusion
38. The Applicant’s complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”
Grounds for appeal
10. In the Notice of Appeal dated 15 February 2019 the applicant advanced the following grounds of appeal:
(1) The judge’s failure to acknowledge his language incapability is unfair to him. The CALL-1 Form was not read back to him. This means that the judge did not even give weight to his handicap;
(2) The hearing bundle should have been translated to him because his memory had faded;
(3) The applicant did not have language assistance at all material times;
(4) The applicant requests translation and language assistance for the better understanding of his case. He also requests an oral hearing with an interpreter.
11. In his skeleton submissions dated 10 May 2019, the applicant repeated the matters raised in his Notice of Appeal. He asked that his case be remitted to the lower court.
12. The applicant agreed by a letter of 15 February 2019 that the appeal could be heard by two judges. We heard the appeal on 10 June 2019.
Discussion
13. All of the grounds of appeal are concerned with language assistance. Even if he is not reasonably proficient in English, it is clear that the applicant had access to language assistance. As the judge rightly noted in [32] of CALL-1 Form, a friend helped him to prepare Form 86 and the affirmation. The applicant had also been assisted by qualified interpreters while he was still represented by the Duty Lawyer Service and during the screening process before the Director and the Board. He was also able to file his Notice of Appeal and his Skeleton Submissions in the English language in which he identified the alleged errors committed by the judge and made submissions on those alleged errors.
14. In our view, the applicant cannot credibly make any complaint, even in relation to the rejection of the claim in respect of “BOR 2” risk, without actually identifying what, if any, relevant additional information he could have provided to the Director and the Board had he been assisted by an interpreter at the times when he alleged he did not have such assistance. We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance.
15. Further, the applicant alleged that the judge did not give weight to his language limitation. This ground is unfounded. The judge has dealt with this issue at [32] of CALL-1 Form.
16. In conclusion, the applicant did not in the notice of appeal or his skeleton submissions identify any error of law by the judge, any relevant matter that he failed to consider, or any other reason why the refusal of leave for judicial review was plainly wrong. Nor can we discern any.
17. There is no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) | (Mohan Bharwaney) |
| Justice of Appeal | Judge of the Court
of First Instance |
The applicant acting in person
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap.383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap.383
[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 and its 1967 Protocol.