Re Parwez Mohammad Shahid

CACV 505/2018

[2019] HKCA 341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 505 OF 2018

(ON APPEAL FROM HCAL NO 195 OF 2018)

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Before: Hon Barma JA, Fung and G Lam JJ in Court

Date of Hearing: 19 March 2019

Date of Judgment: 26 March 2019

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JUDGMENT

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Hon Fung J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 24 September 2018 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 26 January 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (‘the Director”) dated 26 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India.  He entered Hong Kong on 29 October 2012 as a visitor and was permitted to remain until 12 November 2012.  He was arrested by the police on 26 February 2013.  He lodged a non-refoulement claim on 4 April 2014.  Thereafter he lost contact with the Immigration Department until he asked for his case to be re-opened on 20 February 2017.

3.The applicant’s claim was based on threats from a man identified as Mukhtar who was a member of an opposing political party. 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 26 April 2017 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 2 risk,^[1] BOR 3 risk,^[2] the persecution risk,^[3] and the torture risk.^[4]

5.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing on 23 November 2017, the Board dismissed the appeal on 26 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [32] and [35] of the Board’s Decision, the Board did not accept that there was any real threat to the applicant from Mukhtar. The Board was also satisfied at [34] that internal relocation would be viable.

The Deputy Judge’s Decision

7.The applicant filed a form 86 on 8 February 2018 which contained no ground for seeking relief.

8.In the affirmation in support of the leave application dated 8 February 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)   the Board unlawfully fettered its discretion;

(2)   the Board acted in a procedurally unfair manner;

(3)   the Board rendered unreasonable or irrational decisions;

(4)   the Board failed to meet the greater care and duty owed to a self-represented claimant.

9.After summarising 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 [51] of the CALL-1 Form:[5]

“Discussion

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. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s decision dated 26 April 2017 covered all the four applicable grounds including BOR2 risk.

38. The Applicant mentioned he was not represented for appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 26 April 2017. There was no evidence to show the Applicant had re‑applied to the Duty Lawyer Service for assistance.

39. 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.

40. 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. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.

41. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

42. 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.

43. The Director stated in his letter dated 28 June 2018 that the appeal bundle was served on the Applicant on 16 November 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.

44. 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.

45. A few days certainly was not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

46. The Applicant said he answered all the questions honestly in the Board hearing. That would mean he knew well what was asked and how to answer. He was not confused.

47. The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he had actually found the Applicant failed to establish any real torture risk, persecution risk, BOR2 risk or BOR3 risk. There was also no necessity to call psychological or psychiatric reports. And the reliance on COI was rightly minimal.

48. The Applicant complained the Adjudicator failed to make a finding of fact as to whether there existed in India a consistent pattern of gross, flagrant or mass violations of human rights. First, the Applicant failed to prove there were such violations in his country. Secondly, he failed to show how they would be relevant to his own case.

49. There was no evidence that the Adjudicator had cherry-picked information or taken into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.

50. 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’s report showed he was acquainted with the facts of the Applicant’s case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non‑refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

51. The Applicant’s complaints are not reasonably arguable. He has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

Grounds of Appeal

10.In the Notice of Appeal dated 8 October 2018 the applicant did not give any ground of appeal.

11.In his affirmation of the same day filed in support of his appeal, the applicant stated that:

“The grounds of my application are as follows: -

(1) The [judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2) The [judge] failed to provide detailed reason in support of [his] decision.”

12.In his skeleton submission dated 15 February 2019, the applicant submitted that the high standard of fairness should apply to his case and that the decision maker is under a duty to act fairly

13.We heard the appeal on 19 March 2019.

Discussion

14.The applicant’s claim was that he was held at gun point and beaten up by Mukhtar but he managed to escape.  The Board considered that there was no risk of the applicant’s life being in danger because the incident was just a one time “scuffle” as described by him, and had Mukhtar wished to kill the applicant he could have done so there and then.  The Board considered all risk grounds and found that his family were safe all these years not withstanding that his father was the primary target of Mukhtar.  The judge did not see any reason to intervene and neither do we.

15.For the first ground of appeal in the affirmation dated 8 October 2018, the applicant failed to give particulars for the legal error allegedly committed by the judge.  It is therefore not a viable ground of appeal.  As for the second ground, the judge did give detailed reasons at [35] to [51] of the CALL-1 Form.  This ground is without merit.

16.As for the grounds stated in the skeleton submission, the applicant only recited the relevant legal principles without showing how they can be applied to his appeal.  The grounds as to procedural fairness before the Board were adequately dealt with by the judge at [41] to [44] of the CALL-1 Form.  These grounds are thus not viable grounds of appeal.

17.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person