RE ABDUL MANNAN AND OTHERS

CACV 332/2019

[2019] HKCA 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 332 OF 2019

(ON APPEAL FROM HCAL NO. 788 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)     The appeal

1.1   This is an appeal against the decision of Deputy High Court Judge Bruno Chan (‘the Judge’) who refused to grant leave to the applicants to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

1.2   The applicants failed to comply with the directions of the Registrar of Civil Appeals of 12 August 2019 contained in a letter dated 13 August 2019 and did not file their skeleton submissions within the time specified.  As a result, the hearing fixed for 12 November 2019 has been vacated.  The applicants only lodged their skeleton submissions on 23 October 2019 out of time.  We will deal with the appeal on paper and will further take into account the matters contained in the skeleton submissions.

2)     Background

2.1   The applicants are nationals of India.  The 1^st and 2^nd applicants are husband and wife, and the 3^rd applicant is their son.  They arrived in Hong Kong on different occasions as visitors and overstayed and separately raised non-refoulement claims on the basis that if they were to return to India they would be harmed or killed by a creditor of the 1^st applicant for failing to repay a loan.  Their claims were heard together at their request.

2.2   The details of the applicants’ claim have been summarized by the Judge at [2] to [8] of the CALL‑1 Form.

3)     The Director’s Decision and the Director’s Further Decision

3.1   The Director of Immigration decided against the applicants’ claim on 9 September 2016 (‘the Director’s Decision’).  The decision covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), as well as their other statutory and convention right against persecution.  As for the applicants’ torture claim, it has been previously rejected by an immigration officer on 26 April 2013.

3.2   The Director further decided against the applicants’ right to life claim under Article 2 of the Bill of Rights (‘BOR 2’) on 1 August 2017 (‘the Further Decision’).  The applicants did not submit to the Director additional information or materials to substantiate any right to life claim despite being invited by the Director to do so.

4)     The Board’s Decision

4.1   The applicants appealed against the Director’s Decision to the Board on 20 September 2016.  After a hearing held on 24 January 2018, where the Further Decision was also considered, the Board dismissed the applicants’ appeal against both the Director’s decisions on 30 April 2018.

4.2   The Board rejected the applicants’ case specifically on the basis that the evidence of the 1^st and 2^nd applicants was extremely vague and superficial.  The applicants provided very little detail in support of their case.  The Board reached the conclusion that both of the 1^st and 2^nd applicants were not credible witnesses.

5)     Decision of the Judge

5.1   The applicants complained before the Judge that there was a lack of legal representation and language assistance before the Board.  They further complained that there was no screening interview for their BOR 2 claims, a lack of COI consideration, the Director failing to inform the applicants their BOR 2 decisions and failure of the Director to rely on the relevant COI.

5.2   The Judge held that even with the high standards of fairness there is no requirement that torture claimants are entitled to free legal representation at all stages of the proceedings.  The applicants were provided with the assistance of an interpreter during the Board’s hearing.  The Judge held that the applicants had no absolute right to an oral hearing and they cannot complain that they were not given an oral hearing regarding their BOR 2 claim.  There was no right for the applicants to complain of their lack of notice of the Further Decision, as the decision was sent to their address provided.  The Judge held that the Director did consider the relevant COI information.  

6)     Grounds of appeal

6.1   In summary the applicants stated in their notice of appeal the following grounds :

(1)  The Judge failed to acknowledge the applicants’ language incapability.

(2)  The Judge failed to acknowledge the significance of the lack of legal and language assistance provided to the applicants.

(3)  The hearing bundle should have been translated to the applicants.

(4)  The Court erred in rejecting the applicants’ case based on credibility.

(5)  It is unfair to reject the applicants’ case purely based on credibility.

(6)  There was no legal and language assistance to the applicants at all material times.

(7)  There were parts of COI information that supported the applicants’ claim.

6.2   The contents of the applicants’ skeleton arguments reflect the contents of the notice of appeal.  The applicants also submitted that :

(1)  Certain non-refoulement case authorities or legal principles that have been relied upon by the Judge were decided more than 10 years ago and are outdated.

(2)  Many decisions of the authorities that were made against the applicants were not read back to the applicants.

(3)  Based on the lack of language assistance alone, the applicants’ case should be remitted to the lower court for a new deliberation.

7)     Our view

7.1   We will repeat the approach of this Court in dealing with cases of this nature :

(1)  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.  Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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 their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or otherwise plainly wrong.

(3)  In an appeal against a 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 the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2   In our view there are no merits in the applicants’ appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

7.3   Although the applicants claimed that they were not provided with language and legal assistance at all material times, this does not alter the legal position as stated in Re Zunariyah [2018] HKCA 14 and ST v Betty Kwan [2014] 4 HKLRD 277.  The applicants provided no authority to the contrary.

7.4   Notwithstanding the applicants’ claims that Secretary for Security v Prabakar (2004) 7 HKCFAR 187 and FB v Director of Immigration, HCAL 51/2007 are more than 10 years old and are outdated, the Court continues to apply these authorities despite the introduction of the Unified Screening Mechanism.

7.5   Although the notice of appeal and the applicants’ written submissions contain allegations claiming that there were complaints against the Judge, we are of the view that these allegations are, in fact, not complaints against the Judge but complaints against the Board and the Director.  

7.6   We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.