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CACV 272/2017
[2018] HKCA 178
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 272 OF 2017
(ON APPEAL FROM HCAL NO 204 OF 2017)
__________________________
| RE: |
AHMED SYED RAFIQ |
Applicant |
__________________________
| Before: Hon Lam VP and Chu JA in Court |
| Date of Hearing: 22 March 2018 |
| Date of Judgment: 26 March 2018 |
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. This is an application to seek relief from the dismissal of the appeal on account of the applicant’s failure to comply with the order made by Lam VP on 19 December 2017 that the appeal be dismissed unless the applicant lodged appeal bundles before 2 January 2018. The appeal is against the decision of Deputy High Court Judge Woodcock on 17 November 2017 refusing leave to the applicant to apply for judicial review. The applicant came from Pakistan to Hong Kong via a boat from Shenzhen on 15 August 2013. On 11 September 2013, he surrendered to the police and claimed to have lodged a refugee application. On 14 March 2014 he submitted his non-refoulement claim. His claim was based threats from local gangsters who were members of Muttahida Quami Movement. He refused to pay them protection money and he was blamed by them for the death of one of their members. He also alleged collusion between the gangsters and local police.
2. The Director decided against the claims on 25 February 2016. The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”). By a Further Decision of 23 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.
3. The applicant appealed to the Torture Claims Appeal Board. After a hearing held on 6 January 2017, the Board dismissed the appeal on 31 March 2017 (“Board Decision”).
4. The intended judicial review was in respect of the Director Decision, Further Decision and the Board Decision. The Form 86 filed by the applicant on 12 May 2017 did not give any ground for judicial review. In his affirmation of 12 May 2017, he relied on the following grounds,
(1) Lack of legal representation in the determination of his BOR2 risk and in the Board;
(2) All the correspondence with the authorities were in English. The applicant should have been provided with an interpreter;
(3) He could not understand the letter from the Director inviting him to provide further information about BOR2 risk.
5. Notwithstanding that an oral hearing was held on 19 September 2017 (and the applicant was notified of the same by a notice of hearing dated 17 August 2017), the applicant did not attend the hearing. The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [23] to [28] of the CALL-1 Form of 17 November 2017,
“ 23. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and adjudicator’s decision to be without fault. They analysed the material, claims and evidence carefully. The applicant’s complaints against them and the procedure undertaken are not made out.
24. 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”.
25. 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 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. As the applicant is absent I am unable to confirm if he approached the duty lawyer scheme and if they assessed the merits of his appeal. This ground is not reasonably arguable.
26. The second ground is a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a BOR 2 risk claim was in English and was too technical for him. He provides no further particulars. Therefore, he submits the government should provide an interpreter to the applicant as and when required, I quote from paragraph 9 of the affirmation “so as to avoid jeopardising my rights”. I know from the Director’s Notice of Further Decision that the applicant did provide further information to the Director as invited which meant he understood the letter and invitation. I am unable to decipher what was too technical for him. He provides no particulars. This ground is not reasonably arguable.
27. I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no...
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