RE WALIA MANMEET

CACV 109/2023, [2023] HKCA 821

On Appeal from [2023] HKCFI 787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 109 OF 2023

(ON APPEAL FROM HCAL 1036 OF 2019)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge To (“Judge”) on 29 March 2023 (“Judge’s Decision”) refusing to extend time for the applicant to seek leave to apply for judicial review and dismissing the applicant’s application for leave to apply for judicial review. The intended application for judicial review sought to quash, first, the decision made by the Director of Immigration (“Director”) on 21 June 2017 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim (“NRF Claim”) and, second, the decision of the Torture Claims Appeal Board (“Board”) given on 5 March 2018 (“Board’s Decision”) dismissing the applicant’s appeal against the Director’s Decision.

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of India from Punjab now aged about 34, are fears of (1) being harmed or even killed by a loan shark and gangster (“Bhalla”) for failing to repay a loan (of 5 million Indian rupees) (“Alleged Loan”); and (2) being arrested by the Indian police for a false case of fraud and deception trumped up against him by Bhalla.

3.  The circumstances giving rise to such alleged fears have been set out in detail in paragraph 6 of the Director’s Decision and paragraphs 15 to 41 and 65 of the Board’s Decision and in gist in [11] to [16] of the Judge’s Decision embodied in the Form CALL-1 dated 29 March 2023, [2023] HKCFI 787 (“Form CALL-1”).

Overstay in Hong Kong and lodgment of NRF Claim

4.  The applicant arrived in Hong Kong on 13 July 2016 and was permitted to remain as a visitor up to and including 27 July 2016. The applicant did not leave and has overstayed since 28 July 2016. He surrendered to the Immigration Department on 5 September 2016.

5.  The applicant raised the NRF Claim by written representation dated 4 November 2016. He subsequently also submitted a Non-Refoulement Claim Form (“NCF”) on 17 May 2017, which he completed with the assistance of the Duty Lawyer Service.

Director’s Decision

6.  After considering the information provided by the applicant in the NCF and at the screening interview on 16 June 2017, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

7.  The Director was not persuaded that Bhalla had really intended to cause serious or even fatal harm to the applicant, having regard to the past injuries sustained, and the medical treatments received, by the applicant or that Bhalla would have the means to locate the applicant throughout India. More importantly, the applicant’s dispute with Bhalla arose out of the applicant’s inability to repay his debt to Bhalla and was thus purely private and personal in nature. There was no indication that Bhalla’s malicious acts against the applicant had been endorsed by the Shiromani Akali Dal, the ruling party of Punjab.

8.  The Director also found that state protection and internal relocation alternatives would be available in India to lower or negate any risk of harm perceived by the applicant.

Appeal to Board and Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.

10.  The Board conducted a rehearing of the NRF Claim on 29 November 2017, at which the applicant appeared to give evidence and answer the Board’s questions through a Hindi/English interpreter.

11.  The Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection. More particularly, the Board found “serious credibility problems” with various material aspects of the NRF Claim, including the allegations (1) that the applicant had borrowed the Alleged Loan; (2) that Bhalla and his men had twice assaulted the applicant in April and July 2016; (3) that after the applicant had fled to Jalandhar, Bhalla and his men had gone to, and caused property damage at, the applicant’s family home in June 2016; (4) that the police had gone to the applicant’s family home with a warrant for the arrest of the applicant for a fraud and deception case trumped up against him by Bhalla; and (5) that Bhalla has powerful connections throughout India and will be able to locate the applicant wherever he hides in India.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1036/2019 on 4 April 2019 (“Form 86”), the applicant applied for judicial review of the Director’s Decision and the Board’s Decision. As noted by the Judge at [4] of the Form CALL-1, the Director’s Decision had been superseded by the Board’s Decision and was not susceptible to judicial review (Re Moshsin Ali [2018] HKCA 549).

13.  The Form 86 did not state any proposed ground for judicial review. As for the affirmation filed on the same day, the Judge summarised the same into 4 complaints:

(1)  The decisions were unfair and unreasonable. The applicant was not given sufficient time to prepare his evidence.

(2)  The Board failed to give proper weight to the evidence on state acquiescence.

(3)  The Board failed to take “such argument” into account.

(4)  The Board’s attitude was unfair.

14.  The leave application was made more than 10 months out of time. The applicant therefore required an extension of time to make the leave application.

15.  After an oral hearing on 1 March 2023, which the applicant attended in person with a Hindi/English interpreter provided by the court, the Judge did not accept the applicant’s evasive explanation of when he actually received the Board’s Decision to justify an inordinate delay of 10 months.

16.  As for the merits of the intended judicial review, often the most important factor affecting the court’s exercise of the discretion to grant time, the Judge saw no realistic prospect of success for the reasons set out in [25] to [29] of the Form CALL-1:

“Ground (1) – The Decision is unfair and unreasonable

25. The thrust of this ground of application is procedural unfairness in that the Applicant was not given sufficient time to arrange the relevant evidence. He did not give any particulars. His case was founded on the Bhalla’s threat and assault and the false charge of fraud and deception made against him. He had put forward his case in his NCF and the record of interview. He mentioned no other documents needed to be produced. He had all the time he needed between July 2016 when he fled to Hong Kong until November 2017 when he appeared before the Board to arrange his evidence. He gave no particulars about the evidence in respect of which he needed more time to collate. It lies ill in his mouth to complain about unfairness and insufficient time to arrange evidence. His complaint is a mere allegation unsupported by any evidence.

Ground (2) – The Board failed to give proper weight to evidence about state acquiescence

26. The Applicant’s case is about threats from Bhalla and a false charge of fraud and deception instigated by Bhalla. He advanced no evidence of torture or torture at the behest of state official. There is no evidence of state involvement or state acquiescence relating to the threats, assaults or the false charge. There is no evidence that Bhalla was a state official or was able to wield the authority of the government and/or the state. This ground is a familiar template ground but has no relevance to the facts of this case.

Ground (3) – The Board failed to take such argument into account

27. The Applicant gave no particulars of the “such argument” he relied on in this ground. At the hearing, he was unable to elaborate.

Ground (4) – The Board’s unfair attitude

28. The Applicant gave no particulars or evidence of the unfair attitude complained of. It is just a mere allegation. At the hearing, he was unable to elaborate. He actually agreed there was no unfairness.

Discussion and conclusion

29. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board found the Applicant not credible on the crucial issues of his risk of harm upon his return to India. Basically, he failed to discharge his burden of proving his fears and risks. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.”

Appeal to Court of Appeal - grounds of appeal

17.  By the notice of appeal filed herein on 11 April 2023, the applicant appealed against the Judge’s Decision. The singular and recurrent theme of the 13-paragraph long grounds of appeal is the authorities and the courts’ failure to provide the applicant, a litigant in person, with legal and language assistance after the Director’s Decision, notwithstanding the applicant’s known low education level and inability to read and write English.

18.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 28 April 2023, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 5 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

19.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1. The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants. Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Nowadays, this court no longer permits unfocused oral presentation of material at a hearing. In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions. Non-compliance is treated as the abandonment of the right to an oral hearing.

20.  The hearing date on 27 June 2023 was therefore vacated and we will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

21.  An appeal against a refusal of leave to apply for judicial review in a non-refoulement claim is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere if and only if the judge had erred in law or failed to take into account a relevant matter or was otherwise plainly wrong. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2) & (4)].

22.  The lack of legal representation and language assistance after the Director’s Decision is a new allegation. It should have, but had not, been raised before the Judge (and the Board). It is well established that the Court of Appeal will generally not entertain new arguments that are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Re Gurpreet Singh [2021] HKCA 1740 at [15].

23.  Further, the allegation is couched and repeated in very general and wide terms, without identifying any piece of evidence or submission that the applicant could and would have, but had not, presented before the Board or the Judge because he did not have a lawyer or an interpreter.

24.  In any event, there is no substance in the applicant’s complaint. It has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].

25.  Lastly, the applicant was in fact provided with a Bengali/English interpreter every time when he appeared before the Board, the Judge and this court. He has not voiced any doubt about the quality of the interpretation services so provided to him. As for the understanding and preparation of documents in English, we note that the notice of appeal is written in English, thereby suggesting that the applicant does have access to language assistance (when needed).

26.  In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

27.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.