BRAR SUKHWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 477/2021

[2022] HKCA 840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 477 OF 2021

(ON APPEAL FROM HCAL NO 2832 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (the “Judge”)  given on 5 October 2021 refusing leave to the applicant 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 (the “Board” and the “Board’s Decision”)  dated 6 December 2018 dismissing the applicant’s petition/appeal against the decisions of the Director of Immigration (the “Director”)  dated 26 January 2016 and a further decision dated 21 November 2016, both rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He first arrived in Hong Kong on 10 November 2015 but was denied entry.  He was repatriated to India on the same day.  He again arrived in Hong Kong on 20 November 2015 and was denied entry again.  He made a non-refoulement claim on the same day. 

3.  The applicant claimed that, if he returns to India, he will be harmed or killed by his paternal cousin Jagmeet Singh (“Jagmeet”)  and his people, because Jagmeet wanted to dispossess his land but he refused.  The applicant claimed that he has inherited the land from his grandfather.  According to the applicant, he was attacked by Jagmeet and his people over a land dispute in January 2015.  He was injured as a result and he made a complaint to the police, but the police did not investigate into the matter.  He suspected it was because of Jagmeet’s close relationship with the Shiromani Akali Dal party (“SAD”), where Jagmeet and his people were supporters of.  He was further attacked by Jagmeet and his people on four occasions between January 2015 and October 2015, despite having moved to live in different places.  Fearing for his safety, he left India for Hong Kong in November 2015.  Details of his claim are set out in [31] to [56] of the Board’s Decision.

The Director’s Decisions

4.  By a Notice of Decision dated 26 January 2016, the Director rejected the applicant’s non-refoulement claim on BOR 3 risk[1], persecution risk[2] and torture risk[3].  On 1 November 2016, the Director invited the applicant to submit additional facts relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[4].  The Applicant did not respond.  By a further decision on 21 November 2016, the Director maintained its previous decision and concluded that the applicant had failed to establish a BOR 2 risk.

The appeal to the Board 

5.  The applicant appealed out of time to the Board on 20 December 2016.  A hearing took place on 1 November 2018 where the applicant was assisted by an interpreter in the Punjabi language.  The Board considered the applicant’s delay and explanations, it allowed his late filing of the appeal.  After considering his claims on all applicable grounds, the Board dismissed the appeal on 6 December 2018. 

6.  The Board considered his evidence at the hearing and his evidence given to the Director, and found that there were significant discrepancies as to his whereabouts before he left India.  The Board also found that even though the applicant had the opportunity to correct any errors or omissions with the assistance of his legal representative and an interpreter throughout the screening process, his account has varied significantly which seriously undermined his credibility.  The applicant had also failed to provide documentary proof that he owned the land which was the subject of the dispute. Therefore, the Board had doubts that the applicant was in fact involved in a land dispute in India, and even if it existed, the Board was of the view that he had exaggerated his claims.  The Board accepted that based on the available information, state protection in India may be difficult to obtain, however, the Board considered that his risk was at most a localised one, which could be minimised by internal relocation. 

The Judge’s decision

7.  The applicant filed a Form 86 on 11 December 2018 for leave to apply for judicial review of the Board’s Decision, but did not put forward any ground for seeking relief in his Form 86.  In his supporting affirmation of the same date, the applicant stated that he wanted to review the Board’s Decision because his life is still in danger. 

8.  The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on paper.

9.  After summarising the facts and background of the case and considering the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave the following reasons at [12] to [17] of the Form CALL-1[5]:

“ 12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13……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 the decision of the Board.’

14. His grounds in support of this application do not assist his application. The Board had considered his case comprehensively and fairly.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16. There is no evidence that shows that the applicant has any realistic chance of success in his intended judicial review.

   17.    I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”  

Grounds for appeal

10.  Whilst the applicant set out 10 paragraphs in his Notice of Appeal filed on 18 October 2021, his grounds of appeal are largely repetitive and the main grounds are as follows:

(1)  He was not provided with language and legal assistance at all material times and it is procedurally unfair. 

(2)  He did not request for an oral hearing (before the Judge)  because he did not understand the legal process.

(3)  The Judge failed to consider his (written)  signification and the unfairness due to the lack of language and legal assistance.

(4)  He did not elaborate any grounds (of relief)  in his affirmation because of the lack of legal advice. 

(5)  There are no other avenues for non-refoulement claimants to appeal against the decision (of the Board)  based on credibility and it is procedurally unfair.

(6)  There was no interpretation services and the Judge failed to make such a finding.  Even though he was provided with an interpreter during the hearing before the Board, he was not able to identify the errors in the Director’s decision because of his education level. 

11.  In the applicant’s written submissions lodged on 21 January 2022, he repeated that he was under serious threats and his enemy was strong and powerful.  He maintained that the Director and the Board was wrong to reject his claim.  He said the Judge failed to find any errors in the decisions of the Board and the Director.  He set out the following errors:

(1)  He was not provided with adequate legal and language assistance;

(2)  He was not given enough time to bring the documents;

(3)  There was a misuse of the law in that the Director did not offer him the protection under the Hong Kong Bill of Rights Ordinance, Cap. 383;

(4)  The adjudicator (the Board)  rejected his claim based on her personal opinion.

12.  During the appeal hearing, the applicant confirmed he has nothing further to add.

Discussion

13.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(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 issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and the Country of Origin Information (“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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 was otherwise plainly wrong.

(3)  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

14.  As held in Re Moshin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and the Director’s decision has been superseded by the Board’s decision.  It is therefore not open to the applicant to challenge the Director’s decision by way of judicial review.  Hence, insofar as the applicant seeks to challenge the Director’s decisions in this appeal by his written submissions, he is bound to fail. 

15.  In the present case, the applicant did not advance any ground of judicial review before the Judge.  The complaints made against the Board as stated in the Notice of Appeal and in his written submissions are therefore new arguments.  As this Court has repeatedly stated, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

16.  As for his arguments against the Judge’s decision, they are devoid of merits for the following reasons:

(1)  In relation to the alleged lack of language assistance, the Board stated at [56] of the Board’s Decision that the applicant confirmed that he had been assisted by a lawyer and an interpreter during the Department process (the screening process)  and his statement had been read back to him in his own language.  The applicant’s complaint that no language assistance was provided at all material times is therefore misconceived.  It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  Further, we note that the Notice of Appeal and the written submissions filed in this appeal are in English.  It is thus clear that either the applicant is himself conversant with the English language or that he has access to language assistance of his own if he finds it necessary.

(2)  As for the lack of legal assistance, the applicant complained that this is procedurally unfair because this caused his failure to put forward grounds of relief in his supporting affirmation for judicial review and his failure in requesting for an oral hearing before the Judge.  Again, as noted at [56] of the Board’s Decision, the applicant confirmed that he was legally represented at the screening stage.  We also note that he was able to set out his complaints and the alleged errors in the decisions of the Judge, the Board and the Director in his Notice of Appeal and written submissions.  It is thus clear that the applicant has access to legal assistance of his own if he finds it necessary.  His education level has no relevance in this appeal.  Therefore, we do not accept that the failure to request an oral hearing before the Judge or his failure to raise any grounds of relief in the Court below was because of the alleged lack of legal assistance.  In any event, this Court has repeatedly emphasized that a non-refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11]; Re Tariq Farhan [2018] HKCA 17 at [11]; and Re Lopchan Subash [2018] HKCA 37 at [13].  For the reasons above, there is nothing to suggest that the applicant has suffered any prejudice.

(3)  As to his complaint that there are no avenues for non-refoulement claimants to appeal against the decision of the Board based on credibility, this is not a valid ground of appeal.  As mentioned above, the role of the Court in a judicial review is not to provide a further avenue of appeal.  The assessment of the evidence rests within the province of the Board and the Director as the primary decision-makers.  In bringing his non-refoulement claim before the Board, the merits of the applicant’s claim have been considered afresh.  In the present case, the Board has comprehensively assessed the applicant’s account of the events at the screening stage and those given at the oral hearing, and concluded that there were significant discrepancies in his accounts which cannot be reconciled (at [58] to [64] of the Board’s Decision). Such findings are primarily within the province of the Board and we agree with the Judge that they are not open to challenge since no errors of law or procedural unfairness had been shown. 

(4)  For similar reasons, it is not for the Judge to assess the written signification put forward to the Director at the screening stage.  The applicant’s complaint that the Judge failed to consider the written signification is therefore misconceived. 

(5)  The applicant also stated in his written submissions that he was not given enough time to bring the documents.  No particulars were given as to the nature of the documents and the alleged procedural error made by the Board and/or the Director.  We note at [7] of the Board’s Decision that the applicant was given ample opportunity to submit additional information to the Director, as the Director has invited the applicant to do so in a letter dated 1 November 2016.  Also, at [47] of the Board’s Decision, the applicant said at the oral hearing that he did not bring any proof of ownership of the land with him to Hong Kong.  The Board found at [63] of the Board’s Decision that the applicant has made no attempt to obtain any relevant document from the authorities in Punjab or through the Punjab Land Records Society online services.  He was represented at the screening stage and his representative could have assisted him in this regard.  There is no reason for this Court to interfere with the finding of the Board and the applicant is not entitled to raise any complaints on appeal which he had not raised before the Board or the Court below. 

(6)  Furthermore, there is nothing to suggest that the adjudicator has rejected the applicant’s claim based on her personal opinion.  The Board has considered the merits of the applicant’s claim based on a thorough assessment of the evidence, the COI, risk of harm, the availability of state protection and the viability of internal relocation. 

17.  Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified.  As the applicant fails to provide any viable ground of appeal against the Judge’s decision, his appeal is bound to fail. 

Order

18.  For the above reasons, this appeal is dismissed.