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CACV 2/2018
[2018] HKCA 176
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 2 OF 2018
(ON APPEAL FROM HCAL NO 275 of 2017)
__________________________
| RE: |
ZAFAR MUAZAM |
Applicant |
__________________________
| Before: Hon Lam VP, Chu JA and L Wong J in Court |
| Date of Hearing: 21 March 2018 |
| Date of Judgment: 23 March 2018 |
________________
JUDGMENT
________________
Hon Chu JA (giving the Judgment of the Court):
1. This is the applicant’s appeal against the decision of M Poon J (“the Judge”) given on 5 December 2017 refusing him leave to apply for judicial review. The applicant’s intended judicial review is against: (1) the decision of the Director of Immigration (“the Director”) dated 23 March 2015 and his supplemental decision dated 24 October 2016 rejecting the applicant’s non-refoulement claim; and (2) the determination of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 28 April 2017 dismissing the applicant’s appeal against the Director’s decisions.
2. The applicant is a Pakistani national. He went from Pakistan to mainland China through Thailand in June 2006, and eventually entered Hong Kong illegally on 30 June 2006. He was arrested by the police on 12 March 2008 for remaining in Hong Kong illegally. On 29 August 2008, he made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (“CAT”). Upon the commencement of the unified screening mechanism on 3 March 2014, his claim was taken to be a non-refoulement claim and assessed under the new mechanism.
3. The applicant’s claim is based on his fear that if he were to be returned to Pakistan, he would be: (1) harmed or killed by a Mr Sikandar (“Sikandar”) because his family did not vote for him in the 2005 election; and/or (2) arrested by the police because Sikandar had wrongly accused him of killing his son.
4. The Director had assessed the applicant’s claim with regard to torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4].
5. In the first decision of 23 March 2015, the Director assessed the level of risk of harm to the applicant from Sikandar and/or the police in Pakistan upon his return to be low, having regard to the circumstances of the case, the availability of state protection and the possibility of internal relocation in Pakistan. The Director did not accept: (1) there was a genuine and substantial risk of the applicant being subjected to ill-treatment by Sikandar of the kind stipulated under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”); (2) the ill-treatment feared by the applicant came within the definition of “persecution” envisaged by the 1951 Convention relating to the Status of Refugees, or that the applicant’s fear of ill-treatment was well founded; and (iii) there were substantial grounds for believing that the applicant would be subject to torture, including being killed by Sikandar, within the meaning of “torture” under section 37U(1) of the Immigration Ordinance. The Director therefore rejected the applicant’s non-refoulement claim.
6. By letter dated 13 September 2016, the Director invited the applicant to provide additional facts for further assessment under BOR 2 risk. When the applicant did not respond by the deadline, the Director proceeded to make a further assessment under BOR 2 risk. By his supplemental decision dated 24 October 2016, the Director considered that the applicant had failed to establish a personal and real risk of violation of the rights under HKBOR, and decided that a case of BOR 2 risk had not been made out.
7. The applicant appealed to the Board against the Director’s two decisions. An oral hearing was held on 7 November 2016. By a decision dated 28 April 2017, the appeal was dismissed. The adjudicator found the applicant’s evidence not reliable and that he failed to make out a case that he needed non-refoulement protection. He noted the availability of state protection in Pakistan, and the absence of evidence that the applicant had been tortured within the meaning of Section 37U(1) of the Immigration Ordinance or subject to ill-treatment of the kind contemplated by Article 3 of HKBOR. He considered there was no real risk of torture to the applicant upon his return to Pakistan, and that it was unlikely that the applicant would face a genuine and substantial risk of being subject to ill-treatment. The adjudicator also considered it was not a case of persecution risk or BOR 2 risk. He further accepted that internal relocation was possible and it would not be unduly harsh for the applicant to relocate to places away from his home village.
8. The applicant filed his Form 86 on 8 June 2017. He set out the grounds for his application in the supporting affirmation. They are: (1) He was not given legal representation after the Director gave his decision of 23 March 2015, and this violated the principle of high standard of fairness; and (2) He was not provided with the necessary language assistance throughout the process, including the appeal to the Board.
9. Pursuant to the applicant’s request made in his supporting affirmation, an oral hearing was held on 5 December 2017. The applicant was absent at the hearing. The Judge dealt with the leave application in his absence. The Judge refused to give leave to apply for judicial review as she considered the intended judicial review was not reasonably arguable and had no realistic prospect of success. Her reasons are that[5]:
“7. Whilst the applicant complained about the lack of legal representation after the Director’s Decision, he attended and indeed participated in the hearing before the Adjudicator. It is clear from the Form 86 and the Affirmation filed for the purpose of this leave application that he must have access to and was able to seek the necessary advice and assistance that he required. There is no reason why he could not have had such advice if he so sought after his claim was dismissed by the Director and during his appeal to the Board. The BOR 2 claim, having been decided by the Director in the absence of further representation by him, had been considered again in the hearing before the Board. The applicant’s case had been thoroughly canvassed and assessed by the reference to the applicable laws and principles.
8. I do not find that that the lack...
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