HARVINDER SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 38/2018

[2018] HKCA 258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 38 OF 2018

(ON APPEAL FROM HCAL 191 OF 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 dated 30 January 2018 refusing leave to the appellant to apply for judicial review. The appellant came from India. He entered Hong Kong on 13 June 2014 with a permission to remain for 14 days. He overstayed and surrendered to the Immigration Department on 22 September 2014. He lodged a non-refoulement claim on 29 October 2014. The claim was based on his fear of being harmed or even killed by his granduncle and his granduncle’s son over certain land dispute within the family.

2.  By the Notice of Decision dated 19 January 2016, the Director of Immigration (“the Director”) decided against the appellant’s claim.  The Director took the view that, given the low frequency and intensity of the past ill-treatments, the appellant’s alleged ill-treatment upon return to India would not attain a minimum level of severity.  The availability of state protection and the possibility of internal relocation would also lower the perceived risk of harm.  The decision covered the BOR 3 risk, the persecution risk, and the torture risk. 

3.  The appellant appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision.  After having an oral hearing on 19 October 2016, the Board dismissed the appeal on 23 December 2016.

4.  After the dismissal of the appellant’s appeal, the Director further assessed the appellant’s BOR 2 risk.  By the Notice of Further Decision dated 7 March 2017, the Director decided against the appellant.

5.  The appellant appealed to the Board against the Director’s further decision.  Having considered that the appellant provided no additional materials relating to his BOR 2 claim, the Board decided to proceed with the appeal without having an oral hearing.  The Board dismissed the appeal on 25 April 2017. 

6.  The intended judicial review was in respect of the decision of the Board.  The Form 86 filed by the appellant on 9 May 2017 did not contain any grounds for seeking relief.  In his supporting affirmation of the same date (together with a 5-page exhibit marked “HS” thereto), the appellant replied on the following grounds for his intended judicial review:

(a)   He never received the letter from the Immigration Department inviting him to submit additional information in respect of his BOR 2 claim.  (It was however suggested in the exhibit that the appellant did receive the letter from the Immigration Department.  Due to the limitation of his language ability, he could not understand the letter and, hence, failed to submit any additional facts.)

(b)   The procedure was unfair because, in deciding the possibility of internal relocation, the decision makers did not carry out sufficient research and inquiry into the COI conditions or to put sufficient weight on the information relevant to his case.

7.  The appellant did not request for an oral hearing for his application for leave to apply for judicial review.  After summarizing the facts and background of the case and giving due consideration to decisions of the Director and of the Board, the judge gave the following reasons in refusing leave at [14] – [17] of the CALL-1 Form:

“14. The letter which the applicant claims to have never received from the Immigration Department was the one dated 15 February 2017 referred to in the Director’s Notice of Further Decision of 7 March 2017, and it is therefore safe to assume that even if indeed the applicant did not receive that letter, and high standard of fairness requires that he be given the benefit of doubt, he would have become aware of his right to submit additional facts no later than when he received the Director’s Further Decision after 7 March 2017 so that after he lodged his second appeal to the Board on 13 March 2017, he would have had almost six weeks to submit whatever additional facts or materials that he thought would assist his case to the Board before his appeal was dismissed on 25 April 2017, and if what he claimed to be additional facts in his statement were true, such as his family being constantly threatened and tortured, his home was burnt, his mother was seriously injured and that his cousin sister died from the torture, all of which would no doubt be regarded by him as most important and crucial to his case, which begs the most obvious question of why did he not disclose them to the Board in his appeals when according to him all of these occurred the year before in his statement and hence in 2016?

15. As a matter of fact, even up to the filing of this application the applicant still failed to produce any evidence, documentary or otherwise, to support these bare allegations of his, notwithstanding the ample time and opportunities for him to do so and no doubt with the assistance of his family back home such as when his father was able to produce the statement from the village head, as the Court of Appeal pointed out in TK v Michael Jenkins CACV 286/2011, 21 November 2012, that within reasonable bounds the torture claimant is expected to conduct his own investigation and obtain information and materials that it requires to prove his case. As the matter stands I do not think that the applicant has any ground to complain of not having the opportunity to do so.

16. As for his complaint of unfair procedure in the consideration by the Director and the Board of the objective COI in finding that internal relocation is available and reasonable for him to return to live and work safely in India albeit away from his home district, again other than a bare general assertion the applicant has failed to give any details or particulars in support of his argument. Having rigorously examined and scrutinized those COI before the Director and the Board, I am unable to find any error or unfairness in the process of their assessment.

17. In conclusion I do not find any ground that shows any error in law or procedural unfairness on the part of the Director or the Board, or any failure on their part to apply a high standard of fairness in their assessment of the applicant’s claim.  I am therefore not satisfied that his intended application for judicial review is reasonably arguable, and accordingly I refuse his leave application.”    

8.  In the Notice of Appeal of 12 February 2018, the appellant advanced the following ground of appeal:

(1)   the judge disregarded the fact that he had no help from lawyer or interpreter to help him in his case after the Duty Lawyer Service had stopped representing him; and

(2)   the judge did not arrange for further submissions, nor did he hold any oral hearing so as to enable the appellant to address any issue raised by the judge.

9.  By his letter dated 14 February 2018, the appellant agreed that this appeal can be disposed of on paper.

10.  The appellant lodged his written submissions on 6 March 2018.  In addition to repeating the grounds advanced in the Notice of Appeal, the appellant also submitted that the process had been procedurally unfair due to the lack of legal assistance and of language assistance.

11.  As we have repeatedly said, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37.  The appellant already had the benefit of legal representation in presenting his case to the Director.  We do not find anything amiss arising from lack of legal representation in the process before the Board.

12.  It is the appellant’s case that, due to his language limitation, he could not understand the letter from the Immigration Department and so failed to submit additional facts in support of his BOR 2 claim.  We note however that he did not make any complaint of the lack of language assistance in his appeal to the Board in respect of his BOR 2 claim.  The complaint was only made for the first time in his application for leave to apply for judicial review.  We also note that his Form 86 and supporting affirmations were written in English, which indicates either that he is familiar with the English language or that he has access to, and able to seek, such assistance as he needs.  It is further noted that there was no interpretation clause in the affirmations he made, which indicates that he is able to understand the English language without interpretation.  For these reasons, we do not accept that the appellant’s complaint of the lack of language assistance has any merits.

13.  On the facts of this case, we cannot actually see any additional basis for advancing a claim under BOR 2 other than those relied upon in respect of the BOR 3 risk, the torture risk, and the persecution risk.

14.  Under O.53, r.3(3) of the Rules of the High Court, Cap. 4A, a judge may deal with the application for leave to apply for judicial review without a hearing.  The mere absence of an oral hearing does not constitute a ground of appeal.  As we have mentioned, the appellant did not request for an oral hearing in his application.  By making his affirmation with a 5‑page exhibit, the appellant had already had the opportunity to advance his case in full details.  We do not find anything amiss in the judge’s decision to proceed with the application without an oral hearing. 

15.  Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusion that the appellant was not a truthful witness.  As such, there is no substantial ground for believing that the appellant would face a real risk of being subject to ill-treatments which meet the high threshold as required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].  Nor can we find any procedural irregularity or error of law in the Director’s and the Board’s conclusion regarding the possibility of internal relocation.  There is no reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  We agree with the judge that leave to apply for judicial review should be refused.

16.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.