RE JASVINDER SINGH

CACV 27/2022

[2022] HKCA 898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 27 OF 2022

(ON APPEAL FROM HCAL NO. 1463 of 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 31 December 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 11 July 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 27 March 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is an Indian national.  He last arrived in Hong Kong on 4 March 2016, and was permitted to remain as a visitor until 18 March 2016. He did not depart, and overstayed.  The applicant surrendered himself to the Immigration Department on 5 April 2016, and raised his non-refoulement claim prior to being released on recognizance. 

3.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his neighbours who attempted to violently seize land owned by the applicant or his wife.  The factual background was set out at paragraphs 41 to 90 of the Board’s decision.

4.  By notice of decision dated 27 March 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  Those applicable grounds are BOR 3 risk[2], persecution risk[3], torture risk[4] and BOR 2 risk[5].

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 4 July 2018, during which the applicant gave oral testimony and answered questions from the Board.  The Board found that the applicant’s evidence was not credible, because his oral evidence during the hearing kept changing when questioned in detail about ownership of the land, and was inconsistent with his prior evidence in his written signification and his claim form.  When questioned about the inconsistency with his written signification, the applicant did not give a meaningful answer, instead saying that someone else had written it for him. 

6.  The Board also noted that when questioned about the purchase price of the land, the applicant pleaded ignorance and poor memory, claiming and said he could not remember.  He was also unable to clarify the size of the plots of land.  When questioned why both plots of land were registered in his wife’s name, the applicant gave no meaningful answer. Further, when asked to describe procedures for how he bought the land, the applicant was only able to give a sketchy description.  The Board also considered it implausible for the applicant and his wife to have the means to buy land, due to their low income.

7.  Taking the above concerns together with other gaps, inconsistencies and implausible aspects of the applicant’s evidence, the Board concluded that his evidence was not credible. 

8.  Due to its adverse finding on the applicant’s credibility, the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.

9.  Therefore, on 11 July 2018 the Board dismissed the applicant’s appeal on all the applicable grounds except torture risk.

Decision of the court below

10.  On 25 July 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation he raised a number of grounds for judicial review, which the Judge summarized at [11] of the Form CALL-1 as follows:

“11. In his affirmation in support of his application, he said that the Board did not assess his case properly because he was not given free legal representation and time for his preparation. Also, he was not given time to make submissions in respect of BOR 2 risk. He should be given time to seek legal advice and prepare his case on BOR 2 risk and other related matters.”

11.  As the applicant did not request an oral hearing, the application was dealt with on papers by the Judge.  On 31 December 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12 – 17] of the Form CALL-1 as follows:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13(1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

15. He has submitted no valid ground to assist his application. The Board has reject his evidence on the facts of his claim. He therefore has no factual basis in support of his claim. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22]. He did not complain to the Board that he did not have sufficient to prepare his case. He is not allowed to raise this issue before the Court.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.” [sic]

Appeal to this Court

12.  On 12 January 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal are essentially that the lack of legal and language assistance resulted in procedural unfairness.  He pointed out that neither he nor his friend who assisted him in preparing his Form 86 and supporting affirmation understand legal jargon and that without legal assistance, he could not identify legal errors in the Director or Board’s decisions.  Even when an interpreter was provided at the Board hearing, the hearing bundle was not read to him.  The applicant also pointed out that his friend is not a professional, and that he could not always find help with interpretation or translation.  Further, the applicant requested that the judgment be translated or read to him, as no translation of the judgment has been provided.

13.  The Registrar of Civil Appeals directed on 14 February 2022 that the applicant must lodge his skeleton argument on appeal not less than 28 days before the hearing of the appeal, failing which the hearing date would be vacated and the appeal would be disposed of on the papers.

14.  The applicant has failed to lodge any skeleton argument as directed.  The hearing date is vacated and this appeal is disposed of on the papers without a hearing.

Legal principles

15.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [6]; Re Md Shohel Sheak [7]; and Re Limbu Birkhaman [8].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

16.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant in support of his application, and as there appear to be no grounds that point to any error by the Judge, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to its adverse finding as to the applicant’s credibility.  The Board also found that internal relocation was viable.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board.  The court will not interfere with such assessments unless they are reversible on public law grounds. 

18.  The applicant has not raised any errors or concerns as regards the Board’s assessment of credibility.  There seem to be no valid public law grounds for reversing or interfering with the Board’s assessment. In any event, the viability of internal relocation is fatal to the claim.

19.  As for the applicant’s arguments regarding lack of legal and language assistance, whether the level of legal or language assistance provided would result in unfairness, depends on the circumstances.

20.  The applicant was legally represented and provided with language assistance on his claim before the Director.  At the Board proceedings, an interpreter was provided, and the Board decision was based on its assessment of the applicant’s oral evidence at the Board hearing compared with his previous evidence presented to the Director, as well as on country of origin information. 

21.  In the circumstances of this case, it is difficult to see how the level of legal or language assistance provided, in fact resulted in unfairness.

22.  In any event, as this Court (differently constituted)  has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [9]; Re Zahid Abbas [10]; Re Lopchan Subash [11]; Re Gurnishan Singh [12]; Re Gurung Sagar [13]; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [14].

23.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

24.  For these reasons, this appeal is dismissed.