RE GURJANT SINGH

CACV 88/2018

[2018] HKCA 467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 88OF 2018

(ON APPEAL FROM HCAL 704/2017)

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JUDGMENT

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

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 16 March 2018 refusing leave to apply for judicial review. The applicant’s intended application for judicial review is against the decision of an adjudicator of the Non-Refoulement Claims Petition Office dated 15 September 2017 rejecting the applicant’s petition against the determination of the Director of Immigration dated 23 January 2017.

2.  This appeal was originally listed for hearing on 24 July 2018.  At the time when the hearing date was fixed, the court also gave direction for lodging skeleton submissions with an unless order that if such submissions were not lodged, the hearing date would be vacated and the appeal shall be processed on the papers based on materials already filed by the applicant. 

3.  Notwithstanding such unless order, the applicant did not lodge his skeleton submissions. 

4.  Non-compliance with such requirement, notwithstanding an unless order, is treated by the court as the abandonment of the right to an oral hearing, 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.

5.  Accordingly, the hearing was vacated.  We now give our decision on this appeal based on materials already lodged.

Background

6.  The applicant is an Indian national.  He entered Hong Kong on 24 November 2013 with permission to remain as a visitor until 8 December 2013.  He overstayed and surrendered to the Immigration Department on 3 March 2014.  He lodged his non-refoulement claim on the same date.

7.  The applicant’s non-refoulement claim was based on the fear that, if he returned to India, he would be harmed, or even killed by his uncle, with whom he had a money dispute.  It was the applicant’s case that he used to work as a labourer overseas and sent his salary to his uncle for safe-keeping.  His uncle used his money to purchase two plots of land.  After he returned to India, his uncle refused to return his money to him.  The applicant claimed that his uncle tried to kill him so that he would not ask for the return of his money.

8.  By a notice of decision dated 24 November 2014, the Director of Immigration rejected his claim.  The director considered that the applicant only suffered injury once during the confrontations with his uncle and that the injury was not serious.  The low intensity and in-frequency of past ill-treatment indicated a small future risk of harm upon his return to India.  The director also considered that the availability of state protection and the viability of internal relocation would lower the perceived risk of harm.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

9.  The applicant appealed to the Torture Claims Appeal Board.  The board dismissed the appeal on 1 March 2016.  The applicant did not make any application to the court for leave to judicial review this decision of the board.

10.  By a letter dated 5 January 2017, the director invited the applicant to submit additional facts for assessment of his claim under the BOR 2 risk[4]. The applicant did not respond by the deadline, and the director proceeded with the assessment.  By a notice of further decision dated 23 January 2017, the director decided against the applicant’s claim based on the BOR 2 risk.

11.  The applicant petitioned to the adjudicator against the director’s further decision. Although the petition was made out of time, the adjudicator granted an extension of time for the applicant to lodge the petition.  As no additional facts were provided by the applicant, the adjudicator did not see a need to hold an oral hearing.  Having studied the case, including the previous decision of the board, the adjudicator dismissed the applicant’s petition on 15 September 2017.

The deputy judge’s decision

12.  The applicant filed the form 86 on 3 October 2017 in respect of the adjudicator’s decision.  While the form 86 contained no grounds for seeking relief, the applicant advanced the following grounds in the supporting affirmation dated 3 October 2017:

(a)  The adjudicator failed to hold an oral hearing and to invite written submission and evidence from the applicant; and

(b)  The high standards or fairness required the provision of legal representation for the appeal before the board; and

(c)  The adjudicator failed to give adequate explanation for rejecting his petition concerning the BOR 2 claim.

13.  The deputy judge held an oral hearing on 28 February 2018 and gave the following reasons in refusing leave to apply for judicial review at paragraphs 13 to 18 of the CALL-1 form dated 16 March 2018:

“ 13. I considered the applicant’s grounds set out in his affirmation. He seeks to rely on a submission that a lack of an oral hearing was a failure on the part of the adjudicator to adhere to a high standard of fairness. He suggests the fact he was not provided with a legal representative is unfair and unlawful. In addition, the adjudicator failed to explain and give reasons why the applicant’s case did not succeed in invoking protection under Article 2.

14. I have considered the judgment of FB v Director of Immigration HCAL 51/2007 quoted by the applicant and it does not prescribe that a claimant must have an absolute right to free legal representation at all stages of the proceedings. The applicant had the benefit of legal representation in presenting his claim to the Director. Thereafter, the duty lawyer service will continue representation if it is of the opinion that the applicant’s appeal has merits. The same applies to the legal aid; it is processed on the basis of a merit test.

15. There is no merit in the ground that the lack of an oral hearing was a procedural unfairness. I have considered the adjudicator’s reasoning and I see no error of law or evidence of procedural unfairness nor a failure to adhere to a high standard of fairness in the making of that decision.

16. I was satisfied the adjudicator had considered the applicant’s evidence, claim and applied it to Article 2 before making a determination. He had given details of his findings of the applicant’s evidence in his first decision which were applicable to the second decision.

17. Lastly I take into account what the applicant told me during the hearing in submissions and that was he wished to remain in Hong Kong to wait until his wife had completed her employment contract as a domestic helper then, they would return to India together. He did not want to leave earlier than his wife. This is not a ground for considering leave for judicial review.

18. I found no errors of law, no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  I found no grounds that were reasonably arguable.  I found no realistic prospect of success in this application therefore, I refuse leave for judicial review.”

The appeal

14.  In his Notice of Appeal filed on 3 April 2018 and after referring to paragraph 14 of the CALL-1 form, the applicant stated the followings:

“ First of all, the case was determined in 2007 (sic), which was prior to the implementation of the USM which later included the BOR 2 grounds. Whilst I was given legal representation in the determination of torture, persecution risk and the BOR 3 at the Duty Lawyer Service, the service ended when the Notice of Decision was issued by the Director of Immigration and my Duty Lawyer advised me that there are no merits. However, this advice given by the Duty Lawyer was purely restricted to the first three grounds only. The Duty Lawyer has never advised me that I have no grounds of appeal for BOR 2. This is because my Duty Lawyer was never aware of my claim under BOR 2.”

15.  By a letter dated 6 April 2018, the applicant consented that this appeal be heard by a two-judge court.

Discussion

16.  We endorse the deputy judge’s analysis in paragraph 14 of the CALL-1 form.  We do not find anything amiss in it.  Authorities from this Court support this approach, 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 Naveed Muhammad [2018] HKCA 363.

17.  As regards the lack of legal representation in respect of the applicant’s BOR 2 claim, there is no evidential basis for us to accept the applicant’s bare assertion that the Duty Lawyer Scheme ended after the delivery of the director’s first decision.  We do not find that there is any reasonably arguable basis to challenge the fairness of the process.

18.  After the director invited the applicant to submit additional information in support of his BOR 2 claim, the applicant did not provide any.  In such circumstances, we take the view that the director was entitled to proceed with the assessment of the applicant’s BOR 2 risk on the basis of the primary material relating to the other grounds which was prepared with assistance from his legal representative. 

19.  Although the applicant explained in his supporting affirmation that he was detained in the Castle Peak Immigration Centre so he could not respond to the director within time, the adjudicator had given extra time for him to lodge his petition. 

20.  More importantly, the applicant did not identify what additional information that he could have provided to the director regarding his BOR 2 risk.  In such circumstances, we cannot see any factual or other issue that had to be clarified or elaborated in an oral hearing.  If the applicant wished to submit further evidence or make any submission in respect of his BOR 2 risk, he could have done so in his petition to the board. He did not do so.  Against such background, we do not accept that the absence of oral hearing before the adjudicator in respect of the applicant’s BOR 2 risk rendered the process unfair.

21.  On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk independent of the BOR 3 risk, the persecution risk, and the torture risk. The assessment of the risk of harm is the same.

22.  Having considered the materials available before us, we are of the view that the deputy judge’s observations are justified.  We do not find any errors of law or procedure in the proceedings before the adjudicator.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of merits of a non-refoulement claim is essentially a matter for the director and for the adjudicator/board, not for the court.  We agree with the deputy judge that leave should not be given to the applicant to apply for judicial review.

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