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CACV 65/2018
[2018] HKCA 304
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 65 OF 2018
(ON APPEAL FROM HCAL 392 OF 2017)
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| Before: Hon Chu JA and Barma JA in Court |
| Date of Handing Down Judgment: 29 May 2018 |
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Woodcock on 5 March 2018 refusing leave to the applicant to apply for judicial review. The applicant is a Pakistani national. He entered Hong Kong illegally on 25 December 2013. He was arrested by the police on 28 December 2013. On 30 December 2013, he lodged a non-refoulement claim. The claim is based on the threat from members of an opposing political party. According to the applicant, he and his father were supporters (but not members) of a political party PML-N. In around April 2013, supporters of the opposing party PPP shot PML-N supporters. The applicant’s father was shot dead and the applicant filed a police report. Since then, members of PPP tried to locate the applicant and threatened to kill him.
2. The Director decided against the claims on 24 March 2016. The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”). By a Further Decision of 16 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 4 January 2017, the Board dismissed the appeals on 9 June 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 July 2017 did not state any ground for judicial review.
5. In his affirmation of 12 July 2017, he gave the following grounds for judicial review:
(1) Lack of legal representation.
(2) Lack of language assistance. The applicant did not know if the Non-refoulement Form was translated correctly. Also, the applicant was not given an interpreter when he was asked by the Director to submit further information on BOR 2 risk.
(3) Lack of reason given in the Further Decision.
6. 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 [17] to [26] of the CALL-1 Form of 5 March 2018:
“17. The applicant has sought to judicial review the decisions of both the Director as well as the adjudicator of the TCAB. In my view, this is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or a rehearing. There is no room for a judicial review of the Director’s decision. I have considered his grounds of his application against the decision of the adjudicator of the TCAB only.
18. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. The adjudicator’s analysis of the applicant’s evidence was thorough and his finding he was not a credible witness entirely substantiated. The applicant’s complaints against him and the procedure undertaken are not made out.
19. 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’.
20. 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.
21. The duty lawyer scheme will continue to 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 ground is not reasonably arguable.
22. The applicant’s second ground has two parts, the first part is a complaint that the duty lawyer service would not provide him with a translation of his non-refoulement claim form. He requested a translation to ensure the interpreter translated it properly. If there had been any issue with the translation and his claim was not recorded properly or accurately, it would have come to light long before the appeal stage. There is no evidence of this and there is no merit in this ground.
23. The second...
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