Sherpa Anil v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL596/2017

[2018] HKCFI 1516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 596 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and the Applicant being absent in open court;

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 Nepalese national who arrived in Hong Kong on 16 January 2014 and was permitted to remain until 19 January 2014.  He overstayed and was arrested by the police on 21 January 2014.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 11 June 2015.  That claim included three grounds of risk; torture, BOR 3 and persecution.  That decision was appealed and it was dismissed by the Torture Claims Appeal Board (“TCAB”) on 30 December 2016 after an oral hearing.

2.On 13 January 2017 the Director wrote to the applicant and invited him to submit any further information to support a BOR 2 risk claim within 14 days if he wished.  The applicant did not provide any further information within that time period.  The Director studied the applicant’s case under BOR 2 and on 2 February 2017 determined the applicant could not invoke protection under BOR 2.  On 7 March 2017 the applicant appealed to the TCAB out of time and the adjudicator allowed an extension.

3.The adjudicator then determined the appeal/petition without a hearing and rejected it on 25 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 7 September 2017 and requested an oral hearing.  A notice of hearing was posted to the applicant to the address supplied by him in his application on 14 December 2017 for a hearing on 23 February 2018.  The applicant was absent on the date of hearing.  An attempt to call his mobile phone number provided by him was not successful.  I have decided to consider his application on the papers.

4.This application only concerns his BOR 2 risk claim determination.  The adjudicator treated the appeal as a rehearing.  However, an oral hearing is not an automatic right.  He found there to be no need for further questions as all had been addressed previously.  He found no advantage in holding an oral hearing.  He took into account the applicant had been given an opportunity by the Director to provide further material and submissions and he had written to the TCAB in the notice of appeal/petition and put forward his grounds.  His case was clear and the same as it was previously.  The adjudicator could see neither a need nor the justification to organise yet another oral hearing merely to recanvass exactly the same case as had already been dealt with and disposed of previously.  Therefore, the adjudicator was of the view that the appeal could be dealt with by way of a paper review.

5.The adjudicator set out Article 2 and said he had considered the applicant’s case and the reasons given in the previous TCAB decision which were applicable to this rehearing.  He also found the applicant could not succeed in establishing a case under BOR 2.  The adjudicator confirmed the decision of the Director.

6.Upon a reading of the papers, it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in Nepal, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.

Leave to apply for judicial review

7.I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  The applicant’s supporting affirmation sets out three grounds.  However, he does not complain of procedural impropriety; he does not complain that the adjudicator was wrong not to conduct an oral appeal hearing and that he was deprived of a chance to be heard.

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/no interpreters provided; and

(3)  a lack of communication/BOR 2 letters from Immigration Department.

9.The first 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”.

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.  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.

11.The applicant’s second ground is also without merit.  In it, he says he could do no more than repeat the facts of his claim instead of providing new facts to support his BOR 2 risk which makes no sense.  That and this application/affirmation seems to support the fact he is proficient in English or has help therefore, if he had new facts he could have provided them to the Director and the TCAB.

12.The applicant’s third ground is also without merit.  He accuses the Immigration Department of not sending letters to him relating to the BOR 2 risk claim and depriving him of a chance of an interview.  The adjudicator made clear that the applicant’s notice of appeal was a repetition of his previous case.  I am sure if he had not received the two letters from the Director they would have been a ground of appeal mentioned.

13.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.  The same applies to the decision of the Director.

14.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 12^th day of July 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