RE PADIKKASU KASINATHAN

CACV 275/2020

[2021] HKCA 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 275 OF 2020

(ON APPEAL FROM HCAL 1881 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 15 July 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”).[1] The intended judicial review was directed at the decision of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office (“the Board”) dated 4 September 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated respectively 25 September 2015 (“the Director’s First Decision”) and 16 August 2017 (“the Director’s Second Decision”) rejecting the applicant’s non‑refoulement claim (collectively as “the Director’s Decisions”).

2.  The applicant filed his Notice of Appeal on 22 July 2020.  By a letter of the same date, the applicant consented to the appeal being heard by a two‑member court.

A.     Background

3.  The applicant is a national of India, aged 35. He entered Hong Kong on 27 March 2007 as a visitor but had overstayed since 11 April 2007.  He was arrested by the police on 3 November 2009.  On 5 November 2009, he lodged a torture claim,[2] which was rejected by the Board on 7 October 2013.  His non‑refoulement claim was then assessed on all applicable grounds other than torture risk.^[3]

4.  The details of the applicant’s claim and his personal background were set out in paragraph 8 of the Director’s First Decision, and paragraphs 21‑46 of the Board’s Decision.

5.  The applicant claimed that he would be harmed or killed by members of the All India Anna Dravida Munnetra Kazhagam (“AIADMK”) because he was a member of their rival party Dravida Munnetra Kazhagam (“DMK”). The applicant claimed to have joined the DMK in 2005 and to have been assisting them in elections.  The applicant’s assistance of DMK irritated the members of AIADMK who constantly threatened him and also attacked him on several occasions. He also claimed that a policeman, Mr Thurai (“T”), who was also affiliated with AIADMK, had a grudge against him because of his relationship with T’s daughter.  In order to avoid the AIADMK, the applicant left for another city but the AIADMK members hunted him down.  Out of fear, he fled to Hong Kong for protection.

B.     The Director’s Decisions and the Board’s Decision

6.  The Director assessed the BOR3 risk^[4] and the persecution risk^[5] in the Director’s First Decision while the Director’s Second Decision covered the assessment of the BOR2 risk.^[6]  The Director did not accept that the applicant was a genuine non‑refoulement protection seeker and rejected his claim.

7.  The applicant appealed to the Board.  A hearing was held on 28 November 2017, during which the applicant answered questions from the Board.  Having considered the applicant’s oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

8.  The Board found that the applicant’s evidence was vague and generalised, that the core of his case lacked credibility, that there were unexplained inconsistencies between his torture claim form and what he said in evidence, and that much of his evidence consisted of hearsay and speculations.  The Board did not believe that the applicant was giving a truthful or accurate account of his experiences in India, and concluded it could not attach any weight to his evidence (paragraphs 47‑59 of the Board’s Decision).  On this basis, the Board dismissed his appeal.

C.     The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 10 September 2018 seeking leave to apply for judicial review against the Board’s Decision though the Director was named as the proposed respondent.  At the hearing on 23 October 2019 before the Deputy Judge, leave was granted to the applicant to amend the Form 86 to substitute the Board as the intended respondent.  In the applicant’s supporting affirmation, the only ground for judicial review put forward was that the Board’s Decision was based on the information from the Internet, and that the Board did not investigate the facts about the location where the applicant faced risks of harm.  According to the applicant, he, being a strong DMK member working and campaigning for his party, faced torture and death threats.

10.  After hearing the applicant and considering the materials before him, the Deputy Judge dismissed the application for the reasons set out in paragraphs 13 to 17 of the Deputy Judge’s Decision:

“ DISCUSSION

13. The applicant appeared before me and he confirmed that he was free to express his views before the immigration officer and before the Board. His lawyer explained the Director’s Decision to him, He understood the Board’s Decision himself.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

‘ 13. (1) … …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.’

15. His grounds in support of his application do not assist him.

16. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

17.     Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review.  Accordingly, I dismiss his application.”

D.     This appeal

11.  The applicant’s grounds of appeal as stated in his Notice of Appeal are that:

“ I am not satisfied with the decision of authorities. This is matter of my life so I would like to further appeal of my claim. Because this is unfair to me. I think there is not complete fairness in my case. Just because I do not know English very well there is a language handicap does issue in my case.” [sic]

12.  The applicant lodged his skeleton submissions on 21 December 2020, in which he stated he did not think his case had been determined fairly.  He said that as an unrepresented litigant he did not thoroughly understand how his case had been determined and thus it was not easy for him to appeal.  He complained that the lack of legal and language assistance had rendered the procedure unfair.  He further alleged that the authorities’ unfair and quick disposal of the non-refoulement cases constituted a discriminatory act.

13.  At the hearing, the applicant confirmed that he had nothing to add to the materials already provided.

E.     Discussion

14.  The relevant principles regarding appeals in non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14, and may be summarized as follows.

15.  First, 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.  While the court in non‑refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board having regard to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risks of harm, state protection and viability of internal relocation are matters 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, procedural unfairness or irrationality in the decision of the Board.

16.  Secondly, an appeal against the refusal of leave by a judge of the Court of First Instance is not an 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 determining an appeal, the Court of Appeal focuses on the decision of the judge and will only reverse that decision if an appellant can demonstrate that the judge has made errors of law or has failed to take into account relevant matters already placed before the court, or that his decision is otherwise plainly wrong.

17.  Thirdly, in an appeal against refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward for reversing the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it were a fresh application for judicial review.

18.  In light of the above, it is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing his application.

19.  The applicant’s arguments in his Notice of Appeal and skeleton submissions were in summary that the lack of legal and language assistance had rendered the procedure unfair.  These arguments were however not advanced in the Form 86 as grounds for judicial review.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed in the Court of First Instance would generally not be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at §12; Re Md Iqbal [2019] HKCA 912 at §13(3), Re Sudimah [2019] HKCA 1030 at §12(3), and Re Marshall Bill O [2019] HKCA 1031 at §13(3).  These arguments are therefore not valid grounds of appeal against the Deputy Judge’s Decision.

20.  In any event, the grounds based on the lack of language and legal assistances have no merits at all. 

21.  In relation to the lack of legal assistance, this court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at §18; Re Zahid Abbas [2018] HKCA 15 at §11; Re Tariq Farhan [2018] HKCA 17 at §11; and Re Lopchan Subash [2018] HKCA 37 at §13.  In this respect, the applicant was provided with legal representation under the Duty Lawyer Scheme before the Director.  He also confirmed before the Deputy Judge that the Director’s Decision was explained to him by his lawyer.  The Board’s Decision was based on its assessment of the applicant’s credibility in the light of his evidence given to the Board.  There is no merit in this ground.

22.  As to the lack of language assistance, in the present case, all the court documents filed by the applicant, including the affirmation made in support of the leave application, the notice of appeal, and the written submissions in support of this appeal, were written in English.  It is clear that either the applicant is himself conversant with the English language or he would have had access to language assistance of his own if he had found it necessary.  The applicant was assisted by interpreters before the Board and the Deputy Judge.  The applicant also confirmed to the Deputy Judge that he understood the Board’s Decision himself.  Further, it is well established that the high standard of fairness required by law does not require interpretation service to be made available to an applicant at any time he desires: see [20] of Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264; also [12] of Re Gurung Sagar [2019] HKCA 658.  There is also nothing in this complaint. 

23.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no error of law, procedural impropriety or irrationality in those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

24.  For these reasons, the applicant’s appeal has no merit and is therefore dismissed.