Re Rizwan Alias Rizwan Gulistan
Read the full judgment text of CACV 244/2017 on BabelCite. This Court of Appeal judgment was delivered on 16 March 2018 before Cheung CJHC and Lam VP.
Civil procedure – judicial review – leave to apply – non-refoulement claim – BOR 2 risk – procedural fairness – right to legal representation – appeal from refusal of leave – Pakistani national entered Hong Kong illegally in September 2009 and lodged non-refoulement claim based on fear of harm by Pakistani mafia over land dispute regarding family house in North Karachi – Director rejected claim and BOR 2 risk assessment – TCAB dismissed appeal on 26 May 2017 – First issue: whether new grounds concerning lack of legal representation not raised in original leave application can be raised on appeal against refusal of leave – Court holds new grounds cannot be raised on appeal, otherwise Order 53 Rule 4(1) time limit would be flouted – Second issue: whether lack of legal representation in BOR 2 proceedings renders process unfair – Court holds no absolute right to free legal representation at all stages under Sakthevel Prabakar and FB v Director of Immigration, following Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan and Re Lopchan Subash – Third issue: whether applicant was denied chance to submit additional facts for BOR 2 claim – Court holds director's 13 September 2016 letter and Adjudicator's oral invitation provided adequate opportunity – No procedural unfairness – Judge's application of enhanced Wednesbury test and Prabakar fairness standard endorsed – Appeal dismissed
Legal issues: Whether new grounds not raised in the original leave application can be raised on appeal against refusal of leave · Whether lack of legal representation in BOR 2 proceedings renders the process unfair · Whether the applicant was denied the opportunity to submit additional facts for the BOR 2 claim
Outcome: Appeal dismissed; refusal of leave to apply for judicial review upheld.
Cited by 333 cases · Cites 8 cases
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CACV 244/2017 [2018] HKCA 162 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 244 OF 2017 (ON APPEAL FROM HCAL 292/2017) ________________
________________ Before: Hon Cheung CJHC and Hon Lam VP in Court Date of Hearing: 13 March 2018 Date of Judgment: 16 March 2018 _________________ J U D G M E N T _________________ Hon Cheung CJHC (giving the judgment of the court): 1.This is an appeal from the decision of Au‑Yeung J on 27 October 2017 refusing leave to the applicant (wrongly entitled the “plaintiff” in the notice of appeal) to apply for judicial review. The applicant is a Pakistani. He departed Pakistan for the Mainland in August 2009 and came to Hong Kong illegally on 25 September 2009. He was arrested on 19 October 2009. He lodged his non-refoulement claim[1] on 21 October 2009 but later withdrew it. He resurrected the claim in May 2010. It was based on his fear of harm by a Pakistani mafia named Shafi because of a land dispute between them regarding his family house located in North Karachi, Parkistan. 2.The director rejected the claim on 11 June 2015. The director considered that the alleged fear would not likely materialise. The availability of state protection and the possibility of relocation would also lower the perceived risk of harm. The decision covered the BOR 3 risk, the persecution risk, as well as the torture risk[2]. By a supplemental decision of 25 October 2016, the director also assessed the BOR 2 risk[3] in respect of the applicant and decided it against him. 3.The applicant appealed to the Torture Claims Appeal Board. After a hearing held on 27 January 2017, the board dismissed his appeal on 26 May 2017. 4.The intended judicial review was in respect of the board’s decision. The form 86 filed by the applicant on 14 June 2017 did not contain any grounds for seeking relief. In his affirmation dated 14 June 2017 (exhibiting a 5‑page document entitled “RG”), the applicant deposed that:
5.The judge reviewed the material carefully. After summarising the facts and background of the case and considering the decision of the board, she gave the following reasons in refusing leave at paragraphs 20 to 31 of the CALL‑1 form:
6.In the notice of appeal of 6 November 2017, the applicant contended:
7.By a letter dated 9 November 2017, the applicant agreed that the appeal be heard by a two‑judge court. 8.We heard the appeal on 13 March 2018. Despite the directions from the Registrar of Civil Appeals by letter dated 1 December 2017 (paragraph 3), the applicant failed to lodge his skeleton argument before the hearing. 9.In paragraphs 24 and 25 of the CALL‑1 form, the judge has adequately dealt with the ground that the applicant was not given a chance to submit further material in support of his BOR 2 claim. We agree with the judge that there was no procedural unfairness at all. 10.The applicant did not put forward in his original application for leave to apply for judicial review the grounds concerning lack of legal representation for his BOR 2 claim and his reluctance to speak up at the oral hearing due to the lack of legal representation. As we have reiterated many times before, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below. This is equally apposite in an appeal against the refusal of leave. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53 Rule 4(1). 11.In any event, the challenge based on the lack of legal representation has no merit. This court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment in FB v Director of Immigration [2009] 2 HKLRD 346 prescribes that a torture 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. The applicant already had the benefit of legal representation before the director when dealing with his non‑refoulement claim. When he was invited to submit additional facts in respect of the BOR 2 risk, he did not provide any. The director was therefore entitled to proceed on the basis that the applicant’s case on the BOR 2 risk was also based on the same primary materials relating to his other claims (prepared with legal representation). On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk separate from the BOR 3 risk, torture risk and persecution risk. We do not find anything amiss arising from his lack of legal representation before the board. Having heard the applicant in court, we are not impressed by his bare assertion that he was reluctant to speak up at the oral hearing before the board due to lack of legal representation. 12.Having considered the submissions of the applicant in light of the material before us, we find the judge’s observations to be justified. We do not see any errors of law or procedure in the proceedings before the board and there is no reasonably arguable basis to challenge the fairness of the process. Determination of the merits of a case is essentially a matter for the director and the board, not the court. We agree with the judge that leave to apply for judicial review should not be granted. 13.For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.
The applicant appeared in person |
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