RE AMARJEET SINGH

CACV 382/2018

[2018] HKCA 990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 382 OF 2018

(ON APPEAL FROM HCAL NO. 124 of 2018)

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JUDGMENT

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Hon Barnes J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 30 July 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 17 June 2016 and 10 July 2017 rejecting his non-refoulement claim, and the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 19 January 2018 dismissing the applicant’s appeal against the Director’s decisions.

2.  The applicant is an Indian national.  He entered Hong Kong on 9 November 2013 and was permitted to remain as a visitor for 14 days until 23 November 2013 but he overstayed.  He was arrested by the police for overstaying and was referred to the Immigration Department for investigation. He then raised a non-refoulement claim on 20 December 2013.

3.  The basis of the applicant’s claim, originally, was that, if he were refouled to India, he would be tortured or ill-treated by supporters of the Indian National Congress (INC), a rival political party to the party he and his father supported, the Bhartiya Janata Party (BJP), because of his refusal to stop supporting the BJP or to join the INC.  Before the Board, the applicant raised for the first time his additional claim that he feared he would suffer harm because of his Sikh religion.  

4.  The applicant’s background and the details of his claim were set out in full in [7] to [48] of the Director’s Notice of Decision dated 17 June 2016 and [11] to [24] of the Board’s decision dated 19 January 2018, and summarized by the Judge in Form CALL-1 dated 30 July 2018, [2018] HKCFI 1677.  In gist, both the applicant and his father, an influential man, supported the BJP.  On three different occasions, the applicant was either physically assaulted or verbally threatened, or both, by people who either told him to stop supporting the BJP or to join the INC.  The applicant’s father then arranged for the applicant to hide in another place in India for one year.  Fearing that the INC people might find out the applicant’s whereabouts, his father sent him to Thailand.  The applicant also went to other Asian countries before returning to India.  The applicant’s father then arranged for the applicant to come to Hong Kong three months later.  The applicant claimed that the INC was a national party with extensive connections and the police were under their influence.  He claimed reasonable state protection and internal relocation were not available to him.  It would not be safe for a Sikh like him to live in terrorist-plagued areas in India.

5.  By a Notice of Decision dated 17 June 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds.  By a Notice of Further Decision dated 10 July 2017, the Director rejected the applicant’s claim on the BOR 2 risk ground[4]. 

6.  The applicant appealed to the Board.  An oral hearing was held on 17 November 2017 and the applicant gave evidence.  It was then that the applicant mentioned for the first time his fear of suffering harm because of his Sikh religion. 

7.  By its decision dated 19 January 2018, the Board, after considering the applicant’s claim and having taken into account all the evidence adduced by the parties, held that the applicant had not made out a case for non-refoulement protection and accordingly, dismissed the appeal.  The applicant filed a Form 86 on 26 January 2018 seeking leave to apply for judicial review of the decisions of the Director and the Board.  He set out the following grounds for judicial review in the supporting affirmation filed on the same day, namely:

(a)  lack of legal representation.

(b)  lack of language assistance.

(c)  lack of fair hearing.

8.  At the applicant’s request, an oral hearing was held on 7 June 2018. The Judge, having considered his proposed grounds for judicial review, concluded that they were unarguable and had no prospect of success.  The Judge refused to grant him leave to apply for judicial review. 

9.  The Judge set out his reasons in [29] to [37] of the Form CALL-1 as follows:

“29.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

30.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.   Therefore, high standards of fairness must be achieved.   The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

Lack of legal representation

31.  The Applicant complained he had not been provided with legal assistance after the Director's decision coming out on 17 June 2016.  He had legal assistance from the Duty Lawyer Service till then.

32.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.  The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

33.  The Applicant complained he had not been given sufficient interpretation/translation assistance.

34.  In court, the Applicant said he had friends who knew English to help him to prepare Form 86 and the affirmation for the current application of judicial review.  I am sure the Applicant could seek assistance at all material times of his claim.  He had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.   His suspicion that the interpreter had not properly translated the basis of his claim in the non-refoulement claim form (“NCF”) was mere speculation.  That cannot be a proper ground of complaint.

Lack of fair hearing

35.  The Applicant criticised the Director’s absence from the appeal hearing before the Board on 17 November 2017.

36.  The Applicant failed to show how the Director’s absence would prejudice his appeal.  Again, this is not a proper ground of complaint.

37.  I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable.  They made no errors of law and there was no procedural unfairness.  There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process.  The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly.  They considered the Applicant's case carefully.  They were entitled to render those findings, conclusions and decisions which were all reasonable.  The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.” 

10.  The applicant filed a Notice of Appeal dated 9 August 2018 to appeal the Judge’s decision.  He advanced the following grounds of appeal:

(1)  On the ground of lack of legal representation, he disagreed with the Judge’s observation that there was no substance in that ground for judicial review.  He said he did not understand why the Duty Lawyer Service provided him with legal representation for the proceedings to consider all the grounds under the USM but not when the Director assessed the BOR 2 risk.  The Director had been procedurally unfair to him in failing to refer his case back to the Duty Lawyer Service and in failing to ensure the correspondence reached him, giving an example of sending a letter by way of registered post together with a translated copy of the letter.

(2)  On the ground of lack of language assistance, the applicant said it was a mere speculation on the part of the Judge that he could seek assistance from his friends.  He had not exaggerated, and did have genuine problem of getting language assistance in handling English documents.

11.  In his written skeleton submission lodged on 16 November 2018, the applicant recited his grounds of appeal, adding that he would have been able to submit further information and evidence relevant to his case on BOR 2 risk had he been provided with legal representation and language assistance.  The applicant, however, did not give any particulars as to what other information or evidence he would have provided.

12.  We heard the applicant’s appeal on 14 December 2018.  At the appeal hearing, the applicant made no oral submission, save to clarify the “letter” he referred to in the Notice of Appeal and his written skeleton (see paragraphs 10 (1) and 11 above) was the letter from the Director dated 22 June 2017 inviting him to supply further materials to support his BOR 2 claim.

13.  We have carefully considered the applicant’s application.  The grounds of appeal are unarguable.

14.  Grounds (1) and (2) can be dealt with together.

15.  As for the lack of legal representation, it should be noted that that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the proceedings.  The applicant already had the benefit of the assistance from the Duty Lawyer Service to make his claim before the Director.  The Director took it upon himself to further assess the BOR 2 risk after the applicant’s claim was dismissed by him.  The letter was sent to the address provided by the applicant for correspondence.  There is no obligation on the part of the Director to cause the said letter to be sent by way of registered post.

16.  If the applicant wished to be further assisted by the Duty Lawyer Service, it is for him to approach the Duty Lawyer Service.  It is not for the Director to refer the applicant’s claim back to the Duty Lawyer Service after the Director had considered his claim and dismissed it.  We do not accept there was any procedural unfairness as alleged by the applicant.

17.  As for the ground of “lack of language assistance”, the applicant claimed it was “a mere speculation” of the Judge that “he could seek assistance at all material times of his claim”.  The applicant had not specified how the lack of language assistance outside the “hearing” before the Director and/or the Board had affected him, or what further information or material he had been prevented from adducing due to the language barrier.  Besides, the applicant gave evidence before the Board when he appealed against the Director’s two decisions.  The Board duly considered all the evidence and assessed all risks, including the BOR 2 risk.  Even if the applicant had not received the letter from the Director about BOR 2 risk, he has ample opportunity to make his case concerning BOR 2 risk before the Board.  The applicant did not raise any issue of language problem during the hearing before the Board.  Again, we do not see any procedural unfairness as alleged by the applicant. 

18.  We have reviewed the Judge’s decision and the reasons he gave for rejecting the applicant’s application for leave to apply for judicial review.  We agree with the Judge’s observations that the applicant’s intended judicial review is not reasonably arguable and has no prospect of success.  There is no basis to interfere with the Judge’s decision. 

19.  For the above reasons, we are of the view that the appeal has no merit and accordingly we dismiss the appeal.