RE ASHWANI KUMAR

CACV 290/2018

[2018] HKCA 692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 290OF 2018

(ON APPEAL FROM HCAL 866/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 29 June 2018 refusing leave to apply for judicial review.

2.  Because of the non-compliance with an unless order, this appeal (which was originally listed to be heard on 20 September 2018) is processed on paper based on the materials already lodged according to the practice adopted by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The applicant is a national of India.  He came to Hong Kong from the Mainland China on 30 June 2014 illegally and was arrested by the police on 8 July 2014.  He lodged his claim for non-refoulement protection on 10 July 2014.  His claim was based on the fear that, if he returned to India, he would be killed by the people of the Bharatiya Janata Party because he refused to quit the Indian National Congress to join them.

4.  The background facts are sufficiently set out by the judge in the CALL-1 Form at [2018] HKCFI 1437. We shall not repeat the same here.

5.  By a notice of decision dated 23 March 2016, the Director of Immigration rejected his non-refoulment claim (“the Director’s First Decision”).  This decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].   

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s First Decision.  After a hearing on 18 April 2017, the Board dismissed the appeal on 14 July 2017 (“the Board’s Decision”).

7.  By a letter dated 24 March 2017, the applicant was invited to submit additional facts in respect of his BOR 2 risk[4]. As the applicant did not submit any additional facts by the deadline, the Director proceeded with the assessment of his BOR 2 risk.  By a notice of further decision dated 26 September 2017, the Director determined the risk against the applicant (“the Director’s Second Decision”).

8.  The applicant did not appeal to the Board against the Director’s Second Decision.

The judge’s decision

9.  On 10 November 2017, the applicant made an application to the court for leave to apply for judicial review.  Though in the Form 86 the intended application for judicial review was stated as seeking relief against the Board’s Decision, the affirmation in support of 10 November 2017 also put forward grounds relating to the Director’s Second Decision.  The grounds for the intended application in that affirmation were:

(a) The lack of legal representation in that the applicant had not been given legal representation after the Director’s First Decision;

(b) The lack of language assistance, whereby his rights were jeopardized;

(c) The lack of communication among authorities in that he had not received the letter from the Director inviting him to submit additional facts in respect of his BOR 2 risk, and, in any event, the letter which was written in English would be too technical for him to understand; and

(d) The lack of fair hearing in that the director was excused from attending the hearing before the board.

10.  After hearing the applicant on 11 May 2018, the judge gave his decision refusing to grant leave for the applicant to apply for judicial review on 29 June 2018.  Quite rightly, the judge treated the applicant’s application as encompassing the Director’s Second Decision.  The judge’s reasons for refusing leave were set out in [10] to [16] of the CALL-1 form:

“ 10. For his complaint in ground (1) of not being given legal representation in his appeal before 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 while he was given the opportunity to make further representation to the Board at an oral hearing of his appeal, he did not attend nor provided any explanation for his absence. I do not find anything miss arising from the lack of legal representation in his appeal process.

12. As for his complaint in ground (2) of not being given a translation of his NCF so that he could find out whether the interpreter had properly translated the basis of his claim, it is plain that his NCF was completed on his instruction and with legal representation, and in the absence of any particulars to show that the basis of his claim had indeed been wrongly or inaccurately interpreted or translated, I find this ground of the applicant simply speculative and without merit.

13. Regarding his complaint in ground (3) of no legal assistance for him to deal with the Director’s invitation to submit additional facts which may be relevant to BOR 2 risk, even up to now in his leave application including his oral hearing before me, the applicant did not submit any additional facts relevant to BOR 2 risk, nor did he raise any such issue or request for assistance at the hearing in respect of BOR 2 risk, whilst the Director did nevertheless consider such risk which may be relevant to the applicant’s claim but found no such risk on the facts of his own case as explained in the Notice of Further Decision. As such I do not find any merit in this complaint of the applicant.

14. As for his ground (4) over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting the Director’s presence, as the mechanism for the appeal which is a rehearing of the applicant’s claim to be before a different person is actually a safeguard for fairness, and I do not 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 merit in this ground.

15. In the premises and having proceeded to consider 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.

16. 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.”

The appeal

11.  The applicant filed a notice of appeal on 5 July 2018.  The grounds of appeal as set out in the notice were as follows:

“ The Judge has failed to consider my grounds for application for leave for Judicial review thoroughly. In particular the Judge rejected my complain of director’s of failure to consider of my USM. I can continue to seek legal and language assistance from Duty Lawyer Service. So I submit I should be granted the same fair treatment as before my case was withdrawn, given that there has [illegible] be change of circumstance which led to my departure from India one again.” (sic)

Discussion

12.  We agree with the conclusion of the judge that leave should not be granted to the applicant to apply for judicial review.

13.  The judge, after rigorous examination and anxious scrutiny, concluded that none of the grounds for seeking reliefs as set out in the applicant’s supporting affirmation had any prospect of success in the intended application for judicial review.  The judge’s analysis is in line with the case law cited by him, see also Re Gharti Chitra Bahadur [2018] HKCA 452; Re Karamjit Singh [2018] HKCA 460; Re Zaman Muhammad [2018] HKCA 486; and Re Sarwar Muhammad Waqar [2018] HKCA 494. 

14.  The ground of appeal as set out in the notice of appeal do not constitute a viable ground for us to reverse the judge’s decision. 

15.  We dismiss the appeal accordingly.