BILAL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 344/2022

[2023] HKCA 24

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 344 OF 2022

(ON APPEAL FROM HCAL NO 113 OF 2019)

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J U D G M E N T

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Hon Fung J (giving the Judgment of the Court):

1.  The Applicant Bilal is appealing against the decision of DHCJ Bruno Chan dated 5 August 2022 in refusing leave to apply for judicial review against the decisions of the Director of Immigration (Director)  and the Torture Claims Appeal Board (Board)  in dismissing his non-refoulement claim.

Background

2.  The Applicant is a national of India, native of Salempur, Shaharanpur, Uttar Prasesh.  He was born in 1991.  He arrived in Hong Kong on 12 January 2015 as a visitor and subsequently overstayed.  He surrendered to the Immigration Department on 3 February 2015 and raised a non-refoulement claim on 18 March 2015. 

3.  The Applicant’s claim was that he would be harmed or killed by the village head elected in 2011 and his son (Enemies)  because the Applicant’s uncle was the previous village head and his uncle and him supported the rival political party to the Enemies.  He was assaulted once and received 5 stitches.  He then relocated to another part of India.  When he heard that the Enemies were looking for him, he did not feel safe and departed India in December 2014.   He first arrived in Macau, then came to Hong Kong after 3 weeks.

4.  The non-refoulement claim was on the basis of fear of threat to life by the Enemies.

Decision of the Director

5.  The claim was considered on all relevant grounds pursuant to the persecution risk under Article 33 of the Refugee Convention; violation of the right to life under Article 2 of the Hong Kong Bill of Rights (BOR2); torture or cruel, inhuman and degrading treatment or punishment (CIDTP)  under Article 3 of the Hong Kong Bill of Rights (BOR3); and torture claims under Part VIIC of the Immigration Ordinance (Cap. 115).

6.   On 23 November 2017, the Director rejected the Applicant’s claim on all grounds.  The Applicant was only assaulted once by his enemy, then he relocated from the native village, and there was nothing eventful during his stay in his relatives’ place and that his family members were able to maintain a normal living.  The Director considered that the future risk of harm upon the Applicant’s return to India is small. Besides, the Director found that the Applicant’s problem with the Enemies was a private dispute without any state involvement. Also, the availability of state protection and internal relocation alternatives in India would further lower or negate the perceived risk.

Decision of the Board

7.  The Applicant appealed against the Director’s decision to the Board.  He attended the hearing before the Board on 23 October 2018. He accepted before the Board that the dispute with the Enemies was a personal one and not politically motivated, but arose because the Enemies appeared to wield power, on a personal level, in the village.

8.  The Board did not accept the Enemies had the kind of power to influence the police in the village as suggested by the Applicant as there was no reliable evidence in support.  The Board also held that there was no evidence to show that state protection is not available to the Applicant in India.  The Applicant confirmed that his injury as a result of the single incident was a minor one and the Board considered that there was no substantial ground to believe that the Applicant would face a genuine risk of being subjected to ill-treatment.  In addition, the Board considered that it was reasonable for the Applicant to relocate to other areas in India such as Mumbai or Delhi to prevent any perceived risk of harm from his enemies.  The Board concluded that the Applicant did not make out his case for protection on any of the available grounds and the appeal was dismissed on 24 December 2018.

The Intended Judicial Review

9.  On 11 January 2019, the Applicant sought leave to apply for judicial review against the decisions of the Director and the Board.  He stated the following grounds in his Affirmation:

(1)  The Director had erred in refusing the Applicant’s claim and the adjudicator had also failed to assess his claim fairly;

(2)  The adjudicator did not take into account the totality of evidence. He has been cherry-picking and is unlawful;

(3)  Due to the lack of understanding of the process, and that the hearing bundle was not provided with interpretation, the Applicant was confused of what was happening at the hearing, and the Board’s decision had never been read or translated to him to enable him to understand the reasons behind the rejection of his claim thereby depriving him of the opportunity to make a full application for judicial review, the process is unfair.

The Judge’s Decision

10.  On 7 July 2022, the Applicant attended the hearing before DHCJ Bruno Chan.  The Judge noted that the appeal hearing was assisted by an interpreter, and the Applicant never raised with the Board the issue about the hearing bundle, nor requested more time to prepare for the appeal.  The complaint that the Board’s decision was never translated for him clearly could not be used to challenge the validity of the decision.

11.  DHCJ Bruno Chan noted that the Board found inconsistencies and contradictions in the Applicant’s evidence and doubted the credibility of his claim of fear of harm from a fellow villager that caused him to leave his country without first seeking any assistance from the police, and in any event in the absence of any official involvement, state or police protection would be available to the Applicant upon his return to India, and with reasonable internal relocation.

12.  The Judge found there was no error of law, procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board.  Thus, there was no prospect of success in the Applicant’s leave application and the leave application was dismissed on 5 August 2022.

Grounds of Appeal

13.  The Applicant stated in the Notice of Appeal that he disagrees with the decisions of the authorities and his case was not determined fairly.

14.  In his written submissions, he further contended that:

(1)  He was never provided with proper legal and language assistance and the failure in providing proper assistance to non-refoulement claimant is procedurally unfair;

(2)  The authorities should take into account the real procedural unfairness throughout the case and put aside public policies of trying to dispose of non-refoulement claims as quickly as possible;

(3)  If a litigant has not been informed fully of his rights and given opportunity to be heard with such assistance, it cannot be said that the assistance cannot be of any use.

Legal Principles

15.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the Applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and Disposition

17.  Regarding the ground on the lack of legal representation, the Applicant already had the benefit of legal representation in presenting his case to the Director.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings: Re Paswan Shibu Lal [2018] HKCA 249 at para 21.

18.  In relation to the lack of language assistance, interpreter services were provided at hearings at every stage and at the time when the Applicant was assisted by Duty Lawyer.  The high standard of fairness required by law would not entail interpretation service being made available to an appellant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658. 

19.  Besides, all court documents including the affirmation in support and the notice of appeal filed by the Applicant were written in English.  This indicates that either the Applicant is himself conversant with the English language or he has access to language assistance of his own if needed. 

20.  Furthermore, the Applicant has failed to show with any particularity that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

21.  Therefore, the appeal should be dismissed.