RE AHMED ZULFIQAR

CACV 73/2019

[2019] HKCA 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2019

(ON APPEAL FROM HCAL 701/2018)

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RE:

AHMED ZULFIQAR

Applicant

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Before:  Hon Barma JA, Au JA and Bharwaney J in Court

Date of Judgment:  7 November 2019

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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.  On 17 June 2019, this court (Barma JA and Bharwaney J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 1 February 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decisions of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 28 June 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

(1)  the judges have erred in determining that the judge had not failed to appreciate the significance of his non-refoulement claim.  The lack of assistance to the applicant was an error of law and procedure, evidence of procedural unfairness and a failure to adhere to a high standard of fairness;

(2)  the judges have not addressed the issues regarding (6) to (10) in his skeleton submission dated 8 May 2019;

(3)  the judges have failed to address how it was the applicant’s fault to “properly deal with this matter to not hold the hearing for BOR 2”;

(4)  the applicant also complained that “there has been no evidence that I was given an oral hearing of my appeal regarding to BOR 2 claim or it is unreasonable if the [Board] take evidence of my BOR 2 in the appeal which was not including the BOR 2”;

(5)  the was a lack of “evidential consideration of issues raised in court”; and

(6)  the applicant claimed that “if a litigant has not been informed fully of his rights and be given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place”.

4.  The applicant lodged a written submission in support of the application on 12 July 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He submitted that there was a lack of language assistance and that the lack of a hearing for his claim based on BOR 2 risk was unfair.  He asked to have his claim based on BOR 2 risk be remitted to the Director for consideration and that he be given legal and language assistance.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in the Notice of Motion and written submission.

7.  At [15] – [16] of our judgment, we have already addressed the issues regarding the lack of hearing for his BOR 2 risk and the alleged lack of language assistance (which the applicant advanced in paragraphs 6-10 of his skeleton submission dated 8 May 2019).  As for the ground based on the lack of “evidential consideration of issues raised in court”, this ground is vague and lacks particulars.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal. 

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion dated 28 June 2019 is dismissed.

(Aarif Barma)	(Thomas Au)	(Mohan Bharwaney)
Justice of Appeal	Justice of Appeal	Judge of the Court of
		First Instance

The applicant acting in person

CACV 73/2019

[2019] HKCA 663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2019

(ON APPEAL FROM HCAL 701/2018)

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RE:

AHMED ZULFIQAR

Applicant

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Before: Hon Barma JA and Bharwaney J in Court

Date of Hearing: 10 June 2019

Date of Judgment: 17 June 2019

___________________

J U D G M E N T

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Hon Barma JA (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 the applicant leave to apply for judicial review. The intended judicial review was against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 9 August 2016 and 6 April 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 9 April 2015 and 3 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 21 March 2012 illegally and was arrested by the police on 25 March 2012.  He lodged a torture claim on 27 March 2012, which was dismissed by the Director on 8 August 2012.  He did not appeal against that decision.  On 12 February 2014, he raised a non-refoulement claim.

3.  The details of the applicant’s claim have been summarised by the judge at [2] to [11] of the CALL-1 Form.

4.  By a Notice of Decision dated 9 April 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1] and the persecution risk^[2]. 

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 9 August 2016, the Board dismissed the appeal on 12 December 2016 (“Board’s Decision”).  The Board’s Decision covered the BOR 3 risk and the persecution risk.  At [73] of the Board’s Decision, the Board found that the applicant’s case was not credible. 

6.  By a Notice of Further Decision dated 3 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[3], and decided against him.

7.  On 6 April 2018, the Board dismissed the applicant’s appeal from the Further Decision without a hearing. 

The deputy judge’s decision

8.  The applicant filed a Form 86 on 23 April 2018 which contained no ground for seeking relief.

9.  In the affirmation in support of the leave application dated 23 April 2018, the applicant advanced the following grounds for judicial review:

(1)   lack of legal assistance;

(2)   lack of language assistance;

(3)   the Board unlawfully fettered its discretion by refusing the appeal on the grounds that they did not satisfy the requirement;

(4)   the Board acted in procedurally unfair manner;

(5)   the Board’s Decisions were unreasonable or irrational in the public law sense, or a result of procedural errors or unfairness;

(6)   the Board failed to meet the greater care and duty owed to self-represented claimant;

(7)   the Board acted in a hurried way and failed to take into account the additional facts he submitted on 3 January 2017;

(8)   the Board dismissed his appeal from the Further Decision without a hearing; and

(9)   the applicant did not receive the Director’s letter dated 16 December 2016.

10.  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 [35] to [46] of the CALL-1 Form:

“35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. 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.’

37. On 23 April 2018, the Applicant applied for leave for judicial review with respect to the Board’s decision and the Board’s further decision. The application was taken out within three months of the Board’s further decision but more than three months from the Board’s decision. I considered the Board’s two decisions were part and parcel of the Applicant’s single claim of non-refoulement protection. The current application for leave for judicial review as a whole should not be regarded as late.

38. The Applicant said he had not received the Director’s letter dated 16 December 2016 inviting him to submit additional facts. That was not consistent with what he said in his writing. The Applicant explained he was not able to meet the deadline of 30 December 2016 (the deadline for reply to the Director’s letter) because he had to seek help from others. He was only able to reply by letter on 3 January 2017.

39. The Applicant complained the Adjudicator failed to take into account the additional facts he had submitted to the Immigration Department via his letter of 3 January 2017. That was not true. The Adjudicator had considered the said letter. He viewed there was nothing in that letter to overturn the Director’s conclusions. The Applicant could not demonstrate the Adjudicator was wrong.

40. The Applicant complained there was no hearing on BOR2 risk. He accused the Adjudicator acted in a hurried way.

41. The Applicant confirmed in court that he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim. He failed to show he had worthwhile or effective representations to make and thus failed to show it was necessary for the Director and the Adjudicator to hold further hearing solely for the consideration of BOR2 risk.

42. The Applicant complained he did not have legal representation and language assistance after the Director’s decision dated 9 April 2015.

43. 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.

44. The Applicant raised his language problem. In the current application, he was able to find some people in the mosque to help him to prepare Form 86 and the affirmation. He had also sought help from someone to prepare the letter of 3 January 2017 for submission to the Immigration Department. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while still being 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.

45. 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 of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

46. 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

11.  In the Notice of Appeal filed on 15 February 2019 the applicant stated that:

“1. I stand by my argument that the [Board] had unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

2. Such ground was not considered by the Deputy Judge.

3. Should the [Board] have concerns about my case (for example, those issues raised at [25], the [Board] should have held an oral hearing to enable me to have a chance to explain myself or to at least seek further submissions from me.

4. The fact that the [Board] did not offer a reasonable opportunity to put forward such allegations or doubts to me has been procedurally unfair.

5. Furthermore, it is not true that ‘the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times’. This does not mean that the Courts or the [Board] does not owe a duty of care to self-represented litigants.

6. I request an oral hearing.”

12.  In his skeleton submissions lodged on 9 May 2019, the applicant reiterated the matters raised in the Notice of Appeal.  He seeks reconsideration of his case on the basis of procedural unfairness.

13.  The applicant agreed by a letter filed on 15 February 2019 that the appeal could be heard by two judges.  We heard the appeal on 10 June 2019.

Discussion

14.  So far as Grounds 1 and 2 in the Notice of Appeal are concerned, we are satisfied that the judge had adequately considered and dealt with the applicant’s arguments at [35] to [46] of the CALL-1 Form.

15.  As for Ground 3, the Board had dealt with the applicant’s case (including the issue of credibility) in its first decision.  We agree with the analysis by the judge at [41] of CALL-1 Form that the applicant has failed to show that it was necessary to have a hearing solely for the purpose of assessing his BOR2 risk. 

16.  Ground 4 is vague and lacks particulars.  In any event, the applicant was given an oral hearing of his appeal, at which he could have addressed the Board’s concerns regarding his story.  As for Ground 5, the fact is that the applicant was able to analyse the CALL-1 Form and make submissions on it, and the absence of additional language assistance does not, in the circumstances, amount to procedural unfairness that calls for the court’s intervention.

17.  There is therefore 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 acted in person and was not represented