RE KULDIP SINGH

CACV 231/2018

[2018] HKCA 781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2018

(ON APPEAL FROM HCAL 504/2017)

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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 given on 7 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 24 April 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 17 June 2016 and 2 March 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 4 April 2012 and was permitted to remain until 26 April 2012.  He was arrested by the police on 30 May 2013 for overstaying.  After his arrest, he lodged a non-refoulement claim on 9 August 2013. 

3.  The applicant’s claim was based on threats from members of his family and the brother of his girlfriend.  The details of the applicant’s claim have been summarised by the judge at [6] to [10] of the CALL-1 Form.

4.  By a Notice of Decision dated 17 June 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2] and the torture risk^[3].

5.  By a Notice of Further Decision dated 2 March 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 9 March 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 24 April 2017 (“Board’s Decision”).

7.  At [46] of the Board’s Decision, the Board found that the threats to the applicant were “merely dramatic and empty in true nature” and that there was nothing to show that he faced any risk of serious bodily injury or death.  The Board was also satisfied at [38] that state protection would be available for the applicant and at [49] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 9 August 2018 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 9 August 2018, the applicant advanced various grounds for judicial review which are summarised below:

(1)   there were errors in law in the Board’s Decision;

(2)   the applicant never received the letter from the Director seeking additional information on BOR 2 risk;

(3)   the decision maker relied on Country of Origin Information (“COI”) only and did not consider the real life situation;

(4)   the decision maker ignored the overwhelming evidence of violence towards minorities; and

(5)   the decision maker adopted a biased and formulaic approach which was calculated to reject his claim.

10.  In the exhibit marked KS to the affirmation, the applicant advanced various grounds for judicial review which are summarised below:

(1)   The decision maker failed to make sufficient enquiry into the COI.

(2)   The decision maker erred in assessing the level of risk of harm to be low.

(3)   The decision maker ignored COI and police corruption reports.

(4)   The decision maker failed to give weight to the past ill treatment received by the applicant.

(5)   The decision maker failed to evaluate and make a finding of fact as to whether there exists in India a consistent pattern of “gross, flagrant or consequence”.

(6)   The decision maker’s approach to COI was selective.

(7)   The decision maker erred in not accepting the fact that the applicant faced genuine and substantial risk of ill-treatment and holding that the level of risk of harm is low.

(8)   The decision maker erred in holding that the applicant can safely relocate in India because he cannot hide forever from his opponents.

(9)   The applicant did not receive the letter from the Director seeking further information on BOR 2 risk.

11.  The facts and background of the case were summarised by the judge, who had given due consideration to the decisions of the Director and the Board.  The judge refused to extend time for applying for leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [2] to [5] and [15] to [21] of the CALL-1 Form:

“2. The applicant has failed to file his Form 86 in a timely manner within three months of the date of the adjudicator’s decision (order 53 rule 4). He is in fact just over two weeks late. His notice of application does not acknowledge the delay nor does it set out the full reasons for the delay as it should. There is no application for an extension of time to file his application in light of the delay. In the applicant’s supporting affirmation there is a reason for the delay.

3. The applicant said he did not receive any decision from the TCAB dated 13 February however, I note the decision was dated 24 April 2017. He was informed by an Immigration officer that the TCAB decision had been made. The applicant went personally to the TCAB office and requested a copy of the decision. He gives no further details or particulars such as on what date he was informed and on what date did he receive a copy of the decision. He simply says this is the reason for the delay in making this application.

4. During the oral hearing, the applicant gave a different explanation for the delay. He said it was a late application because if he had known about the process of applying for judicial review of the decision then he would have made the application earlier. He said that his friend told him that these applications can be a little late. The applicant blamed his lack of education on his failure to submit the application on time. The same friend drafted his affirmation on his behalf. He could not recall what reasons his friend had given in his affirmation for the delay in this application.

5. The delay in filing this application is not insignificant, there was no proper explanation for the delay and the brief reason given is not a good reason for extending time. This is also because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak. Moreover, the application does not raise any questions of general importance. Extension of time sought should be refused. Delay alone is enough to dispose of this application. However, if I am wrong, I proceed to consider the merits.

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15. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find no fault with the adjudicator’s decision. The same applies to the decision of the Director. The applicant’s grounds and complaints are not made out and I find no substance in the grounds of this application.

16. The grounds in the applicant supporting affirmation are not so clear or coherent but from what I can summarise he submits the adjudicator failed to properly consider and fairly deal with Country of Origin (‘COI’) information. He cherry picked information that resulted in an unreasonable finding. There are no particulars provided by the applicant. He submits the adjudicator failed to consider whether there is a consistent pattern of human rights abuses in India and whether there was State protection for the applicant.

17. The adjudicator made a finding that the applicant was not at risk under any applicable ground according to the evidence that he believed to be true. He set out in his decision his findings and reasons for his findings. There is no need therefore, to go into detail where COI is concerned. The applicant had not claimed there was a flagrant consistent pattern of gross mass violation of human rights therefore, the adjudicator did not consider it. For the same reason, it was not necessary to assess State acquiescence. There are no merits in the grounds highlighted above.

18. The applicant makes a complaint against the interpreter misinterpreting what was said in relation to the applicant’s BOR 2 claim that had already been refused. He gives no details or particulars of what mistakes the interpreter made. He said that if he had received the Director’s letter inviting him to submit additional facts to support a BOR 2 claim then he would have done so. He claims that he did not receive such a letter. During the oral hearing the applicant said he could not be sure what letters he has received; his memory fails him. I find no mention in the decision of a complaint from the applicant that he did not receive such a letter. I find no merit in this convoluted ground.

19. There are criticisms of the adjudicator’s findings which I will not disturb. He evaluated the evidence and gave reasons for his findings. The applicant attempts to introduce new evidence in his affirmation; he says he is now dragged into some false cases by his opponents. This was not part of his case before the Director or the adjudicator of the TCAB. I would not consider it, even if there were particulars, in an application of this nature.

20. I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. This applies also to the Director’s decision.

21. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

12.  In the Notice of Appeal dated 14 June 2018 the applicant advanced a number of grounds of appeal, which can be summarised as follows:

(1)   the judge failed to see the significance in the level of unreasonableness and unfairness in his non-refoulement claim;

(2)   the applicant could not be sure what letters he received as none of those letters had been translated to him.  Also, other claimants received legal assistance for their claim under BOR 2 risk.  This preferential treatment was unfair;

(3)   the authorities had failed to properly consider the COI.  The applicant requested to know the evaluation exercise over the COI.  The COIs are not neutral or fair because they were compiled by people who did not actually live in the country.

13.  In his skeleton submissions dated 26 September 2018, the applicant reiterated the grounds of appeal in the notice of appeal.

14.  The applicant agreed by a letter of 19 June 2018 that the appeal can be heard by two judges.  We heard the appeal on 23 October 2018.

Discussion

15.  The applicant did not address the issue of delay in his notice of appeal.  Like the judge, we find that there was no good reason for the court to extend time for the leave application.  The appeal can be dismissed for this reason alone.

16.  We nevertheless proceed to consider the merits of the appeal.  The first ground lacks particulars and is bound to fail. 

17.  As for the ground based on the lack of legal representation, this Court has 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).  Representation at later stages is merits based, and this is not procedurally unfair or preferential treatment (as the applicant contends).  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.  This ground is without merit.

18.  As for the complaint about the letter from the Director seeking further information on BOR 2 risk, this must be viewed against the fact that the applicant testified at the Board hearing ([42] Board’s Decision).  He could have provided further information on BOR 2 risk if there was any.  There was no real prejudice to the applicant even if he failed to receive that letter.  This ground has no merit.

19.  The third ground based on COI also lacked particulars.  Further, while the Board made reference to COI at [38B] of Board’s Decision, the primary reason for dismissing the appeal to the Board was the lack of any risk of the proscribed harm ([47] Board’s Decision).  This ground also has no merit.

20.  There is no merit in the appeal and we dismiss the appeal accordingly.