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Re Zahid Abbas

Judgment Cited in 315 Precedent Map Related
Vincent
Judgment Date11 January 2018
Neutral Citation[2018] HKCA 15
Year2018
Judgement NumberCACV216/2017
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV216/2017 RE ZAHID ABBAS

CACV 216/2017

[2018] HKCA 15

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 216 OF 2017

(ON APPEAL FROM HCAL NO 324 of 2017)

__________________________

RE: ZAHID ABBAS Applicant

__________________________

Before: Hon Cheung CJHC and Lam VP in Court
Date of Hearing: 9 January 2018
Date of Judgement: 11 January 2018

________________

J U D G M E N T

________________

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

1. This is an appeal against the decision of Deputy High Court Judge Woodcock on 15 September 2017 refusing leave to the applicant to apply for judicial review. The applicant came from the mainland to Hong Kong illegally on 17 September 2013. He was arrested on 30 September 2013. On 5 October 2013 he lodged a non-refoulement claim. The claims were based on threats from a man called Noman, the head of Sipah-e-Sahaba Pakistan group in the applicant’s native village where he used to live.

2. The Director decided against the claims on 7 March 2016. The decision covered BOR 3 risk, persecution risk and torture risk. By a supplemental decision of 19 April 2017, 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 2 May 2017, the Board dismissed the appeals on 12 June 2017.

4. The intended judicial review was in respect of the decisions of the Director and the decision of the Torture Claims Appeal Board. The Form 86 filed by the applicant on 26 June 2017 did not contain any grounds for seeking relief. In his affirmation of 26 June 2017, he relied on the following grounds,

(a) Lack of legal representation; and

(b) Lack of language assistance.

5. 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 [32] to [39] of the CALL-1 Form,

“ 32. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director and the adjudicator’s decision to be without fault. They analysed the material, claims and evidence carefully, logically and with caution. I found no substance in the grounds of this application. The applicant had nothing to add or to say during the hearing for leave except to repeat his first ground.

33. 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 is 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. He submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

34. 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. I do not agree, the fact that it is not presumably 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. There is no substance in this...

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316 cases
  • Re Shrestha Santosh Kumar
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 6 September 2018
    ...has an absolute right to free legal representation at all stages of the proceedings, see: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 176. 26. Determination of merits of a non-re......
  • Re Waryam Singh
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 24 September 2018
    ...have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 11. The applicant already had the benefit of......
  • Re Nadeem Asif
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 21 September 2018
    ...must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176. 13. The applicant already had the ben......
  • Re Dhimal Kamala
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 28 September 2018
    ...repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15). The applicant failed to show how the lack of legal representation caused any prejudice. Indeed, it appears that she did not in fact seek ......
    • Request a trial to view additional results

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