Re Ali Haider

CACV 8/2018

[2018] HKCA 222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 8 OF 2018

(ON APPEAL FROM HCAL NO 353 OF 2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1. This is an appeal against the decision of Deputy High Court Judge Woodcock dated 22 December 2017 refusing the applicant leave to apply for judicial review. The applicant is a Pakistani. He came to Hong Kong on 27 October 2014 with permission to remain until 3 November 2014. He overstayed and was arrested by the police on 8 January 2015. He lodged a non-refoulement claim on 10 January 2015. He was later convicted of drug trafficking and sentenced to 8 month’s imprisonment. His non-refoulement claim was based on his fear of harm and threat to his life by his own family members due to a land dispute within the family.

2. By the Notice of Decision dated 20 October 2016, the Director of Immigration (“the Director”) rejected the claim. The Director assessed the level of the applicant’s risk of harm upon return to Pakistan to be low. The availability of state protection and the possibility of relocation also lowered the perceived risk of harm. The decision covered BOR 3 risk, BOR2 risk, persecution risk, and torture risk. The Director concluded that none of those risks would warrant non-refoulement protection in favour of the applicant.

3. The applicant appealed to the Torture Claims Appeal Board (“the Board”). After a hearing held on 15 May 2017, the Board dismissed the appeal on 23 June 2017. The Board found him as an unreliable witness and found that his evidence, including that on the centre-piece on his case, was not credible at all, see paras 27 to 43 of the Board’s decision.

4. The intended judicial review was in respect of both the Director’s and the Board’s decisions. Form 86 filed by the applicant on 3 July 2017 did not contain any grounds for seeking relief. In the supporting affirmation, the applicant relied on 3 grounds:

(a) After the Director’s decision was issued, he was not provided any legal assistance, and this violated the principle of high standard of fairness;

(b) The Hong Kong Government did not provide any language assistance and the letter from the Immigration Department seeking further information was too technical for him. His rights were thereby jeopardized; and

(c) The adjudicator placed a lot of weight on his credibility rather than the substantial risk that he would be under upon his repatriation to Pakinstan.

5. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at paragraphs 8 to 15 of the CALL-1 form:

“8. 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 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 them and the procedure undertaken are not made out.

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.

11. 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. However, the applicant here said in answer to my question during the hearing that he did not approach the scheme and ask for help with his appeal. The scheme was not even asked to provide him with representation nor assess his appeal. This ground is therefore not reasonably arguable.

12. The applicant’s second ground is a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a further decision to be issued was in English, this normally relates to a BOR 2 risk claim separately considered by the Director. The complaint is that the letter was too technical for him. He provides no further particulars. He submits the...