RANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 209/2018

[2019] HKCA 23

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 209 OF 2018

(ON APPEAL FROM HCAL 520/2017)

_______________

_______________

___________________

J U D G M E N T

___________________

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

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) on 24 May 2018, refusing to grant the applicant leave to apply for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 12 September 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 2 January 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: 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.

BACKGROUND

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1019.  We shall not repeat the same here.

4.  Briefly stated, the applicant is an Indian national. He entered Hong Kong on 11 March 2014 as a visitor and was permitted to stay until 25 March 2014.  He did not depart and overstayed since 26 March 2014.  On 10 April 2014, he surrendered to the Immigration Department and raised his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by supporters of Akali Dal Party (“ADP”) as he and his family were affiliated to a rival political party namely, the Congress Party (“CP”).

5.  By a Notice of Decision dated 11 December 2014, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 11 May 2017, the Director also rejected the applicant’s claim on BOR 2 risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decisions.  After an oral hearing on 9 June 2017, the Board dismissed the appeal on 26 July 2017. The Board found at [27] to [38] of its decision that applicant’s case that he left India for the purpose of avoiding serious harm from ADP was not credible as he failed to prove the alleged incidents of attacks were connected or instigated by ADP.  The Board also found inconsistencies in the applicant’s written evidence but he refused to answer any question or explain his case at the hearing.  After due consideration of the evidence available, the Board confirmed the decision of the Director and found that the applicant had failed to establish his non-refoulement claim under all applicable grounds.

THE JUDGE’S DECISION

7.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 16 August 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant complained about :

(1)  the lack of legal representation and language assistance before the Board thereby causing miscarriage of justice;

(2)  the failure on the part of the Director to ensure the applicant had received the letters from the Immigration Department and failing to consider if he could understand the contents of the letters;

(3)  the lack of representative from the Immigration Department to attend the appeal hearing before the Board.

8.  On 24 May 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [17] – [23] for her refusal to grant leave :

“ 17. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him 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 his 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’.

18. 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 him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases. The applicant said during the hearing that the duty lawyer scheme told him they would not continue to represent him because in their opinion his appeal had no merit. Their assessment is on a case-by-case basis.

19. In the second ground, the applicant submits he has heard that he should have received a letter inviting him to submit additional information if he wished to support a BOR 2 risk claim. He has been told the letter is in English and the language used is very technical, making it hard for him to understand. He says specifically that he is ‘uncertain’ whether the letter has been issued to him or the dismissal letter has been issued to him. He says the Immigration Department has not ensured he has received them or given him a chance to explain himself further.

20. However, during the oral hearing the applicant confirms that he did receive a letter dated 25 April 2017 inviting him to submit information if he wished but he was sick at the time so he did not submit any information. Despite what the affirmation says he now recalls that he did receive those letters. Therefore, there is no merit to this ground.

21. The last 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.

22. 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. In fact, the adjudicator was more than fair by allowing the applicant to adjourn hearing dates without reasonable explanation. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. The same applies to the decision of the Director.

23. 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.”

THE APPEAL

9.  The applicant filed the Notice of Appeal on 7 June 2018 in which he set out the following grounds of appeal :

(1)  He disagreed with the Judge’s comment that he could not seek leave to apply for judicial review against the decision of the Director as he had already utilized the channel of appealing the Director’s decision to the Board.

(2)  The Director had failed to arrange an interview with him before rejecting his claim on BOR 2 risk.

(3)  The Director had failed to refer his case to Duty Lawyer Service (“DLS”) so that he could obtain legal advice for his claim on BOR 2 risk.  When his case was first referred to DLS, his non-refoulement claim only covered BOR 3 risk, torture risk, and persecution risk and it was only fair if his claim on BOR 2 risk were also referred to DLS.

(4)  The Director had failed to translate the letter in inviting him to submit additional information for his claim on BOR 2 risk.

DISCUSSION

10.  On ground (1), as held in Re Moshsin Ali [2018] HKCA 549, the Board would treat the appeal / petition as a rehearing and would have dealt with all the complaints against the Director’s decision at the appeal hearing.  Its decision would have as a result overtaken the decisions of the Director.  Any application to the court for leave to apply for judicial review should thus focus on the decision of the Board.  The Judge had rightly referred to this principle at [15] of the CALL-1 Form and had correctly applied it in this case.  Ground (1) is devoid of merit and doomed to fail.

11.  As for grounds (2) to (4), the complaints advanced by the applicant are merely regurgitation of the arguments which were already canvassed by the Judge and rightly rejected by her at [17] to [21] of the CALL-1 form.  Further, this Court has repeatedly emphasised that 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.  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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

12.  In our view, the Judge’s observations and findings are well justified.  We cannot see any error of law or procedural unfairness or irrationality in the proceedings before the Director and the Board in handling the applicant’s claim on BOR 2 risk.  Grounds (2) to (4) disclose no ground for this Court to reverse the Judge’s decision.

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