RE RAVINDER KUMAR

CACV 273/2017

[2018] HKCA 138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2017

(ON APPEAL FROM HCAL NO 181 OF 2017)

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JUDGMENT

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on ­17 November 2017 refusing leave to the Applicant to apply for judicial review. The Applicant arrived in Hong Kong (from India via Bangkok) on 2 August 2013. His permission to remain here expired on 16 August 2013. Since then he overstayed illegally. He was arrested on 17 November 2013. On 19 November 2013 he lodged a non-refoulement claim. The claims were based on the alleged threat to the Applicant’s life arising from his report of his cousin’s demise and his political difference between him (as a non-member supporter of the Indian National Congress) and the supporters of Akali Dal (the rival party).

2.  The Director decided against the claims on 26 February 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 22 February 2017, the Director also assessed BOR 2 risk and decided against the Applicant.

3.  The Applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 3 March 2017, the Board dismissed the appeals on 6 April 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Director Decision, Further Decision and Board Decision.  The Form 86 filed by the applicant on 5 May 2017 did not state any ground of judicial review.  In his affirmation of 5 May 2017, he relied on the following grounds:

(1) Lack of legal representation in the determination of his BOR2 risk and in the Board;

(2) There was no legal representation or language assistance available to the applicant when he was asked by the Director to provide information regarding BOR2 risk.

5.  The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [22] to [26] the CALL-1 Form of 17 November 2017:

“22. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and adjudicator’s decision to be without fault. They analysed the material, claims and evidence carefully. The applicant’s complaints against them and the procedure undertaken are not made out.

23. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed his claim the applicant received no further free legal advice or assistance. The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

24. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis. The applicant agreed in the hearing that he had approached the duty lawyer scheme and requested representation for his appeal only to be refused by the scheme because they were of the view that there was no merit in his appeal. This ground is not reasonably arguable.

25. The second ground is a complaint that the letter from the Immigration Department inviting the applicant to provide further information in relation to a BOR 2 risk claim was in English and was too technical for him. He provides no further particulars. Therefore, he submits the government should provide an interpreter to the applicant as and when required, I quote from paragraph 9 of the affirmation “so as to avoid jeopardising my rights”. I know from the Director’s Notice of Further Decision that the applicant did not provide further information to the Director as invited. I note from the adjudicator’s decision there is no complaint from the applicant on this matter, it was not raised with the adjudicator. This ground is not reasonably arguable.

26. I do not find any ground that shows there was an error of law by the Director or the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.”

6.  In the notice of appeal of 30 November 2017, the Applicant repeated the grounds canvassed before the judge.  He also said that he did not provide information regarding BOR2 risk to the Director because of the lack of language assistance.  He was also unaware of the fact that he could complain to the Board about this.  Further, while the Applicant does not dispute that the Duty Lawyer did not represent him in the appeal to the Board because they took the view that there was no merit, it did not indicate that the Duty Lawyer could have possibly foreseen the same in relation to his claim under BOR2 risk.

7.  The Applicant agreed by a letter of 30 November 2017 that the appeal can be heard by two judges.

8.  Notwithstanding the direction made by the Registrar of Civil Appeals on 18 December 2017, the Applicant did not lodge any skeleton argument in support of his appeal.

9.  We heard the appeal on 7 March 2018.

10.  Having considered the submissions of the Applicant in light of the materials before us, we found the judge’s observations to be justified.

11.  The Board held that the evidence given by the Applicant was not credible ([40] of Board Decision).  Further, the Director and the Board had held that state protection is available ([13] of the Director Decision and [52] of the Board Decision).  There is no scope for finding risk of torture based on the concept of state acquiescence. 

12.  Lastly, the finding of the Director and the Board (which the judge found no ground to disturb after rigorous and anxious scrutiny) was that there is no substantial ground for believing that the Applicant 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].

13.  The Applicant complained about the lack of legal representation in the proceedings in the Immigration Department and the Board. We do not see any merit in that argument.  The Applicant did not provide any particulars as to the prejudice he suffered from.  He did not state or outline what information regarding BOR2 risk he wished to provide.  On the facts of the case, the assessment of BOR 2 risk could effectively be made on the same materials present on his behalf in other respects.

14.  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 HCAL 51 of 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.  The Applicant already had the benefit of legal representation in presenting his case to the Director of Immigration prior to the decision of 26 February 2016.

15.  The Applicant also had the opportunity to advance his case fully, including his case on BOR 2 risk, before the Board.  We do not find anything amiss arising from lack of legal representation in the process before the Board.

16.  The Applicant also complained about the lack of language assistance.  It is clear from the written decision of the Board that there were interpretation services available at the hearing before the Board. In any event, the Applicant was able to proceed in English and all his documents were written by him in English. 

17.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process. We agree with the judge that leave to apply for judicial review should not be granted.

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