RE VINAY KUMAR

CACV 367/2018

[2019] HKCA 138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 367 OF 2018

(ON APPEAL FROM HCAL 997/2017)

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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 on 3 August 2018 in HCAL 997/2017 refusing leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board dated 24 November 2017, dismissing his appeal against the decisions of the Director of Immigration dated 9 May 2016 and 7 July 2017 rejecting his claims for non-refoulement protection.

2.  The appeal was to be heard on 11 January 2019.  By a letter to the applicant dated 7 September 2018, the applicant was directed to lodge skeleton submissions not less than 28 days before the hearing and warned that if he failed to do so, he would be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper.  The applicant failed to file any written submission by the stipulated time.  The hearing date of the appeal was accordingly vacated, and we have dealt with this application on paper.

3.  The applicant is an Indian national who allegedly entered into Hong Kong on 23 January 2014 with permission to remain as a visitor up to 6 February 2014.  He overstayed and was arrested by the police on 10 February 2014.  The applicant raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle over a business dispute with the applicant’s father.

4.  The background facts have been summarized in the Decision of the Judge, Form CALL-1, [2018] HKCFI 1541 at [2]-[6].

5.  The Director decided against the applicant’s claim on 9 May 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (“BOR 3”), as well as other statutory and convention rights against torture and persecution (“Director’s Decision”).

6.  The Director decided against the applicant’s further claim on 7 July 2017 (“Director’s Further Decision”).  The Director’s Further Decision covered applicant’s rights under Article 2 (right to life) of the Bill of Rights (“BOR 2”).

7.  The applicant appealed the Director’s Decisions to the Board. After a hearing held on 20 September 2017, the Board dismissed the applicant’s appeal on 24 November 2017 (“Board’s Decision”).

8.  The Board based its refusal on the following findings succinctly summarized in the Decision of the Judge at [11]:

“11. In its decision the Board found that even if it were to accept all the applicant’s evidence at face value that there was a financial dispute between his father and his uncle and that the latter had physically assaulted the applicant, it would not be sufficient to engage the relevant protection obligations, as the dispute is essentially about how much money the applicant’s father would be paid out on leaving a business with the uncle offering less than the father was prepared to accept which does not engage Hong Kong’s protection obligations, and that even if it is accepted that his uncle has made verbal threats against the applicant’s life into the future, it is still insufficient to engage Hong Kong’s protection obligations as COI indicated that India has a population of 1.2 billion people spread over 3 million square kilometers with several cities with more than 10 million people that the applicant can always relocate within the country beyond any capability or resources of his uncle to locate him …”

9.  By his decision dated 3 August 2018, the Judge refused to grant leave to the applicant for judicial review.

10.  The grounds of the intended judicial review before the Judge were that the applicantlacked legal representation before the Board, that he was not provided translation services, that there was no proper explanation for the Director rejecting his BOR 2 claims, that there was a failure to find acts of torture on the merits of his case, that it was unfair for the Director not to have attended the Board’s hearing.

11.  The Judge decided that high standards of fairness do not require free legal representation at all stages: Re Zunariyah [2018] HKCA 14.  He held that there was no explanation as to how the basis of the claim was wrongly understood by the Board because of a problem with translation.  He further held that the applicant did not submit additional facts in the assessment of the BOR 2 claims, and that the Director did give reasons for rejecting the BOR 2 claims.  There was no error in law in the Judge’s finding that the applicant’s case was a private dispute which does not engage non-refoulement protection.  There were also no grounds to allege that the applicant was prejudiced because of the non-attendance of the Director at the Board hearing.

12.  The applicant filed his Notice of Appeal on 6 August 2018.

13.  The applicant’s Notice of Appeal sets out three grounds of appeal:

(i)   there was a failure of the Judge to apply high standards of fairness in his assessment of the application for judicial review;

(ii)   the applicant complained that he only had one duty lawyer’s advice and did not have a chance to seek a second legal opinion;

(iii)   the applicant complained that he was not given legal representation for his BOR 2 claims.  He cited Secretary v Prabakar (2004) 7 HKCFAR 187 and FB v Director of Immigration HCAL 51/2017, and contends that these cases were decided prior to the implementation of the Unified Screening Mechanism so they should not apply to his case.

14.  Ground 1 is without merit.  The applicant simply makes a bare assertion that the Judge did not apply high standards of fairness without explaining how this was the case.  Having considered the decision of the Judge, we are of the view that there is no error of law or procedural error therein.

15.  Grounds 2 and 3 are equally without merit and are considered together.  It has been held in Re Zunariyah [2018] HKCA 14 (case where the Unified Screening Mechanism was adopted) that neither the high standards of fairness in Secretary v Prabakar (2004) 7 HKCFAR 187 and FB v Director of Immigration HCAL 51/2017 prescribe that a torture claimant has an absolute right to free legal representation at all stages of the proceedings. The Duty Lawyer Service (after the initial representation before the Director) is merits based, meaning that there is an assessment of the merits before it decides if its further services are to be provided to the applicant.  There is thus no merit in the applicant complaining that he had no second chance to seek legal advice.

16.  Further, the applicant did not submit additional information to the Director for the assessment of his BOR 2 claim when asked to.  Most importantly, the Board’s Decision was based on the finding of fact that the applicant’s own case was one of a private dispute that does not attract Hong Kong non-refoulement protection under the relevant treaties and conventions.  There is no merit in the applicant complaining that he lacked legal representation for his BOR 2 claim.

17.  We have stated many times that assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are all primarily within the province of the Board and the Director. The court will not intervene unless there are errors of law or procedural unfairness or irrationality in the Board’s Decision.  We see none here.

18.  We therefore are of the view that the applicant’s appeal is without merits, and the appeal is dismissed.