RE GURUNG AMITA

CACV168/2018

[2018] HKCA 769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 168 OF 2018

(ON APPEAL FROM HCAL 518/2017)

-----------------------------------

-----------------------------------

______________________

J U D G M E N T

______________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock given on 14 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 31 July 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 14 January 2016 and 23 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  She entered Hong Kong on 12 May 2013 to work as a foreign domestic helper.  She was convicted of criminal offences on 10 January 2015 and was sentenced to 15 months’ imprisonment.  Whilst serving that term of imprisonment, on 21 May 2015, the applicant lodged a non-refoulement protection claim. 

3.  The applicant’s claim was based on threats from her cousin.  The details of the applicant’s claim had been summarised by the judge at [3] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 14 January 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 23 May 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against her.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 June 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 31 July 2017 (“Board’s Decision”).

7.  At [22] of the Board’s Decision, the Board found that there was no substantial evidence to show that the applicant’s cousin will carry out the verbal threat upon her return to India.  The Board was also satisfied at [28] that state protection would be available to the applicant and at [46] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 16 August 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 16 August 2017, the applicant advanced various grounds for judicial review which are summarised below:

(1)   lack of legal representation for the determination of BOR 2 risk and before the Board amounting to miscarriage of justice;

(2)   lack of language assistance for the appeal before the Board and no translation was provided for her Non-refoulement Form;

(3)   insufficient reason given for rejection of BOR 2 risk by the Director; and

(4)   lack of fair hearing for the BOR 2 risk determination and no Immigration Department representative at the appeal.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [21] of the CALL-1 Form:

“10. The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in her Form 86. There is only one ground in her affirmation directed at the Director; he failed to arrange an interview before rejecting the applicant’s BOR 2 claim and failed to give reasons for that rejection. I will refer to this ground later but it has no merit.

11. I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes she says the Director made in her appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated her appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

12. I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. The supporting affirmation lists the following as grounds for seeking leave:

(1) lack of legal representation before TCAB/miscarriage of justice;

(2) lack of language assistance/procedural unfairness;

(3) insufficient reason given for rejection of BOR 2 risk by the Director; and

(4) procedural irregularity/no Immigration Department representative at the appeal.

13. The first ground is a complaint by the applicant she was not provided with legal representation for her appeal/petition nor to assist her 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 her 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’.

14. 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 her beyond what was provided by the duty lawyer scheme to her. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases. Their assessment is on a case by case basis.

15. The fact the applicant was unrepresented in her appeal has not been shown to be procedurally unfair. The applicant said herself at the hearing that she did not approach the duty lawyer scheme and ask for help with her appeal. She does not know why she did not ask for help but she dealt with the appeal herself. She can hardly complain now when she did not ask for help then. There is no merit in this ground.

16. The applicant’s second ground is also without merit. In it, she complains the duty lawyer service is saving costs and refused to translate her ‘NCF’ despite her request for it. Without it she cannot confirm whether or not the basis of her claim written in English is accurate and that was the purpose of her request. During the process, interviews and appeal, there does not seem to have been any reason to suspect her claim was not translated properly. If there had, the applicant would have been able to particularise it. Perhaps more pertinent to this ground was her answer during the oral hearing to a question relating to this ground where she admitted that she never asked for a translation of her NCF. There is therefore, no merit in this ground.

17. The applicant’s third ground although it is a complaint against the Director, I will still deal with it. She suggests no reasons were given for rejecting the BOR 2 risk claim. The notice clearly refers to the Director’s findings in his previous decision of 18 January 2016 and applies it to Article 2. He rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of her feared treatment as set out in that previous decision. In any event, it was never the applicant’s case that she was at risk of harm from capital punishment inflicted by the government or that she faced harm from her government that would put her life at risk. Even if this was an application applicable to the Director, this ground would have no merit.

18. There are two parts to the applicant’s last ground. She submits the Director rejected her BOR 2 claim without an interview and he assumed the applicant receive the previous letter inviting her to submit information and was able to read, understand and interpret it. This implies that she had difficulty understanding it and had difficulty in replying to it. However, the applicant admitted in open court that she did receive the letter and said she asked a friend to read it to her. She admitted she understood its contents but did not pay much attention to it.

19. The second part to this ground was a criticism of the Director’s Department for not sending a representative to the appeal hearing. The Director would have submitted submissions to the TCAB as well as the applicant and then asked to be excused. There is no procedural impropriety or unfairness to the applicant. There is no merit in this ground.

20. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. The same applies to the decision of the Director.

21. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 18 May 2018 the applicant advanced a number of grounds of appeal, which can be summarised as follows:

(1)   the judge erred in holding that the applicant should not have sought leave against the Further Decision of the Director;

(2)   The applicant should have been provided with legal representation for her claim based on BOR 2 risk; and

(3)   the Director should have translated the letter to the applicant dated 10 March 2017 seeking further information on BOR 2 risk.

12.  In her skeleton submissions dated 5 October 2018 (received on 9 October 2018), the applicant reiterated the grounds in the notice of appeal.

13.  The applicant agreed by a letter dated 23 May 2018 (received on 28 May 2018) that the appeal can be heard by two judges.  We heard the appeal on 23 October 2018. At the hearing, the applicant informed us that she had notified the Director on 27 August 2018 that she no longer opposed being returned to India, and that she was content for her appeal to be dismissed.

14.  In the light of the applicant’s decision not to pursue her appeal, it must be dismissed. However, we would add that the appeal was in any event unmeritorious.

Discussion

15.  For the first and third grounds in the Notice of Appeal, we note that the Board expressly referred to the Further Decision ([6] Board’s Decision) and directed its mind towards BOR 2 risk ([11] Board’s Decision). During the hearing, the Board asked the applicant if she had anything to add to the evidence she had provided to support her claim, to which she answered she had nothing further to say ([20] and [21] Board’s Decision).  In the circumstances, the judge was right in holding that the Further Decision had been overtaken by the Board’s Decision.  Also, the lack of translation of the letter dated 10 March 2017 did not cause any real prejudice to the applicant as she was offered the opportunity to provide further information to the Board, and she had nothing further to add.  At the hearing before the judge, the applicant admitted that she understood the letter with the help of a friend but did not pay attention to it.  Further, the BOR 2 risk was in fact considered by the judge.  These grounds therefore have no merit.

16.  As for the second ground based on the lack of legal representation, the judge has dealt with this ground at [14] of the CALL-1 Form.  The applicant is unable to point to any error in the judge’s analysis, with which we agree.  This ground also has no merit.

17.  We therefore dismiss the appeal accordingly.