Ahmad Asif v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL391/2017

[2018] HKCFI 565

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 391 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani national who claimed to have entered Hong Kong illegally by bus.  On 27 January 2013 he was arrested by the Hong Kong police for being an illegal immigrant and then he lodged a non-refoulement protection claim.  His claim was that he was a Sunni Muslim that fled persecution by Shia Muslims after a confrontation at a religious rally in 2011 and further attacks in mid-2012.

2.That claim was rejected by the Director of Immigration (“the Director”) on 2 June 2016 and 29 March 2017.  The applicant did lodge an appeal/petition to the Torture Claims Appeal Board (“TCAB”) after the rejection of 2 June 2016 but he filed his notice of appeal 11 weeks late and the TCAB refused an application for extension of time to file it.  The applicant did not seek leave to apply for judicial review of that refusal within three months or later.

3.The applicant did lodge an appeal/petition to the TCAB on time after the rejection of 29 March 2017 which related to the BOR 2 risk[1] claim only.  The TCAB rejected the applicant’s appeal/petition on 9 June 2017.

4.The applicant filed a notice of application for leave to apply for judicial review on 12 July 2017 of that last TCAB decision and it was made within the time limit imposed in Order 53. However, the applicant also seeks leave to apply for judicial review of the Director’s decision dated 2 June 2016 and the Director’s Notice of Further Decision dated 29 March 2017.

5.The applicant had an opportunity to appeal that Director’s decision dated 2 June 2016 and he wasted it.  The adjudicator rejected his reasons for filing a notice of appeal 11 weeks late and refused to hear his appeal.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  There is now no room for him to seek leave to judicial review the Director’s decision of 2016.  He did not seek leave to judicial review the adjudicator’s decision.  In any event, the application would be nine months late and no explanation has been given for the delay, no merits stand out and there are no questions of general public importance.

6.All that is of concern here is the applicant’s BOR 2 risk claim.  The chronology surrounding that risk claim is as follows:

1.  On 14 March 2017, the Director wrote to the applicant and invited him to submit additional facts if he wished in relation to his BOR 2 claim on or by 28 March 2017.

2.  According to the Director, by 29 March 2017 he had received no reply from the applicant to his letter.  He went on to consider the applicant’s BOR 2 risk on the information and evidence already presented by the applicant previously; see his decision dated 2 June 2016.

3.  The Director’s Notice of Further Decision dated 29 March 2017 was issued and posted to the applicant.  It informed the applicant that the Director considered that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance being violated (including the right to life under BOR 2) upon his return to Pakistan.  It explained the appeal mechanism.

4.  The applicant filed a notice of appeal on 11 April 2017 to the TCAB.  The TCAB considered it unnecessary to hold an oral hearing.  There was no additional material submitted by the applicant, no question of law arising, no issue of credibility to be considered and the TCAB found the BOR 2 protection had no relevance to the claim as presented by the applicant.  On his own facts, the applicant was not at risk of BOR 2 harm if refouled.  The TCAB rejected the appeal on the papers.  The adjudicator of the TCAB confirmed the decision of the Director.

7.The applicant did request an adjournment of this hearing to await legal aid which I refused.  The applicant made this application in July 2017 and if he had hoped for legal aid, he should have made that application at the same time. Apparently, he made an application for legal aid in February 2017 but he does not know why he made that application then.  He could not have pre-empted his application for leave to apply for judicial review some five months later.  He has not made any enquiries with the legal aid department about that application since.  I do not treat that application for legal aid as related to this application.

Leave to apply for judicial review

8.The supporting affirmation lists the following as grounds for seeking leave:

(1)  his lack of legal representation before TCAB/miscarriage of justice;

(2)  the lack of language assistance given to him/unfairness;

(3)  no reason given by Director for rejecting BOR 2 claim/procedural unfairness; and

(4)  failure to hold an oral hearing/procedural unfairness.

9.The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk.  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”.

10.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.

11.The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.  This applicant at first admitted during the hearing that he did not approach the duty lawyer scheme for legal assistance in his appeal and then said he did but they did not give him a reason for refusing him. 

12.The applicant’s second ground is also without merit.  In it, he complains the duty lawyer service is saving costs and refused to translate his “Answer 35” of his non‑refoulement claim form despite his request for it.  Without it he cannot confirm whether or not the basis of his claim written in English is accurate and that was the purpose of his request.  However, this applicant admitted during the hearing that he did not request the Duty Lawyer Service to provide him with a translation of his Answer 35. 

13.Within that second ground, it states the Immigration Department invited the applicant to provide additional facts/information in a letter which was too technical for him to understand. During the hearing, I pointed it out to him that the affirmation contradicted his oral submission.  In answer to this, the applicant reiterated that he did not receive this letter and did not say this in his affirmation; he did not know who wrote this.  When his affirmation was read to him he explained that his friend prepared his affirmation and filed it so his friend may have added this.  This is not a reasonable explanation for this contradiction.  In paragraph 11 of his affirmation he confirms again that he received that letter.  There is no merit in this misleading and inaccurate ground.

14.The third ground submits the Director gave no reason for rejecting his BOR 2 risk.  Even if I considered the applicant could seek leave to apply for judicial review of the Director’s decision out of time and as well as the adjudicator’s decision, there is no merit in this ground. The adjudicator considered the provisions of BOR 2 and whether the applicant would be subject to any risk of his rights under BOR 2 being violated in light of the assessment of his claim as set out in the Director’s decision dated 2 June 2016.  There is no merit in this ground.

15.The last ground submits the adjudicator was wrong to deny the applicant an oral hearing.  He confirms that he did receive the Immigration Department’s letter but because of its complexityhe did not reply in time.  The adjudicator then made an assumption he had no additional materialto submit which is a miscarriage of justice.  The fact is there was no additional material submittedby the applicant and the adjudicator’s reasoning for not holding an oral hearing cannot be faulted.  There is no merit in this ground.

Conclusion

16.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 failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave is refused.

Dated 23^rd day of March 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1