RE WARYAM SINGH

CACV 177/2018

[2018] HKCA 633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 177 OF 2018

(ON APPEAL FROM HCAL 805/2017)

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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 Bruno Chan given on 11 May 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 19 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 18 October 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 4 November 2013 as a visitor and he surrendered to the Immigration Department on 27 November 2013. He lodged a non-refoulement claim on 7 March 2014. 

3.  The applicant’s claim was based on a threat from a man identified as SL.  According to the applicant, SL and the applicant’s father had a land dispute.  In around 2013, SL threatened to kill the applicant.  Concerned for his safety, he decided to flee to Hong Kong.

4.  By a Notice of Decision dated 18 October 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 August 2017, the Board dismissed the appeal on 19 October 2017 (“Board’s Decision”).

6.  At [27] of the Board’s Decision, the Board found that the threat from SL were just hollow threats.  The Board was also satisfied at [28] that state protection was available for the applicant.

The deputy judge’s decision

7.  The applicant filed a form 86 on 25 October 2017.  The form 86 contained no ground for seeking relief. 

8.  In the affirmation in support of the leave application dated 25 October 2017, the applicant advanced the following grounds for judicial review:

(1)   lack of legal representation in his appeal to the Board;

(2)   lack of legal assistance in translating his NCF for him to ascertain whether the interpreter had translated the basis of his claim properly which could potentially lead to injustice;

(3)   wrongful exercise of case management power in rejecting his claim on his credibility and by giving undue weight to COI as to the effectiveness of law enforcement and avenues for justice in India; and

(4)   lack of fair hearing in not requiring the attendance of the Director in his appeal hearing.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave to apply for judicial review.  The judge gave the following reasons at paragraphs 10 to 17 of the CALL-1 form:

“10. For his complaint in ground (1) of no legal representation provided for him in his appeal to the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must 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 176.

11. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal before the Board and to answer questions put to him by the adjudicator without any difficulty. I do not find anything amiss arising from the lack of legal representation in the appeal process, and I do not think this ground is reasonably arguable.

12. Regarding his complaint in ground (2) of not being provided a translation of his NCF so that he could find out if the interpreter had been translating the basis of his claim properly, it is clear that the NCF was completed on his instruction with legal representation from the Duty Lawyer Service, and that he was assisted by a proper interpreter at his appeal hearing, hence in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted, I find this ground of his simply speculative and without any merit.

13. As for his ground (3) in which he complains that the Board has no reasonable basis for rejecting his credibility, apart from the well-established principle that the evaluation of evidence is essentially a matter for the Director and the Board who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision makers, the fact is that in this case the credibility of the applicant was in the main not an issue as the adjudicator clearly accepted that his evidence was generally consistent with his claims previously made to the Director, as it was so stated in paragraphs 24 – 28 of the decision. I therefore fail to see any basis for any complaint against the Board on issue of credibility.

14. As regard his complaint of the Board placing undue weight on COI as to the effectiveness of state protection in India, in the absence of any particulars or specifics from the applicant, and upon examining those COI listed and referred to by both the Director and the Board, I do not find anything amiss arising from their reliance of them in their consideration and assessment of state protection in India or for that matter of the applicant’s claim. Accordingly I do not find any basis or merit in ground (3) of the applicant.

15. As for the applicant’s complaint in ground (4) over the non-attendance of the Director at his appeal hearing, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board. There is simply no basis or merit in this ground of the applicant either.

16. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

10.  In the Notice of Appeal dated 23 May 2018 the applicant advanced a single ground of appeal relating to the lack of a translated copy of the non-refoulement claim form (NCF).  He also complained that the NCF was not translated for him during the hearing before the Board.  As a result, there was no way for him to find out if the NCF was accurate.

11.  In his skeleton submissions dated 15 August 2018, the applicant repeated the same matter as were in the Notice of Appeal.

12.  The applicant agreed by a letter of 30 May 2018 that the appeal can be heard by two judges.

General principles

13.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [HKCA] 524, CAMP 524/2018 at [14]:

“14. …

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

14.  We find that the sole ground of appeal based on the lack of translation of NCF to be without merit.  The applicant accepts that the NCF was translated and read back to him when it was completed – this would have enabled him to pick up any problems with it.  Further, the applicant has been able to follow the court’s directions and provide documents written in English.  He therefore either has the necessary proficiency in English or he has access to assistance with translation.  If there had been any error in the NCF, he could and should have raised the same before the judge.  Even at this stage he has failed to identify any error in the NCF.  It cannot be said that the applicant suffered any real prejudice from the lack of a translated copy, and like the judge, we consider his complaint to be speculative.

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