RE SUKHVINDER SINGH

CACV 96/2024, [2025] HKCA 439

On Appeal From [2024] HKCFI 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 96 OF 2024

(ON APPEAL FROM HCAL NO 397 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 5 March 2024 ([2024] HKCFI 658)  (“the Leave Decision”)  refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 28 January 2019 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decisions of the Director of Immigration (“the Director”)  respectively dated 27 November 2014 (“the Director’s 1^st Decision”)  and 26 April 2017 (“the Director’s 2^nd Decision”)  refusing his non-refoulement claim (collectively referred to as “the Director’s Decisions”).

2.  The appeal was listed to be heard on 25 September 2024.  The applicant was directed to lodge two sets of skeleton argument on or before 28 August 2024 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The directions and the warning were communicated to the applicant by the Notice of Hearing dated 5 August 2024.  However, the applicant did not lodge any skeleton argument in support of his appeal.

3.  As the applicant failed to lodge a skeleton argument by the stipulated time, he was deemed to have waived his right to have an oral hearing and elected to have his appeal disposed of on paper.  The hearing date was thus vacated on 29 August 2024.

BACKGROUND

4.  The applicant is a national of India.  He last arrived in Hong Kong on 1 August 2014, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his former girlfriend’s father who objected to their relationship.  Details of the applicant’s claim were summarised by the Judge at [1] - [7] of the Leave Decision.

5.  By the Director’s Decisions, the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

6.  The applicant then appealed against the Director’s Decisions to the Board.  On 16 November 2015 and 4 December 2018, the applicant attended two oral hearings before the Board where he gave evidence.  By the Board’s Decision, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [12] of the Leave Decision:

“12. In its decision the Board accepted the Applicant’s claim of threats from his former girlfriend’s father DS over their previous relationship but found no evidence of any real intention of DS to seriously harm or kill him other than to deter him from seeing his daughter or any reason for DS to still have any further adverse interest in the Applicant given the fact that he has put an end to the relationship since 2014, and that in any event it was a private personal dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move safely to other places away from his home village without any risk of being located that his claim for non-refoulement protection in Hong Kong failed on all the applicable grounds.”

THE JUDGE’S DECISION

7.  On 12 February 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  He gave no ground of review in his Form 86.  In his supporting affirmation, he raised the following grounds of challenge as summarised by the Judge at [13] of the Leave Decision:

(1)  That he was not provided with legal representation for his appeal before the Board;

(2)  That he was not provided with language assistance for proper understanding of the Director’s decisions to enable him to have a better understanding of the reasons for rejecting his claim; and

(3)  That the Board merely adopted a formulaic approach in assessing his claim by relying on the same country of origin information listed by the Director as to the overall condition in India including the ineffectiveness of their policy and the judicial procedures.

8.  On 6 February 2024, the applicant attended an oral hearing before the Judge and a Punjabi/Urdu interpreter was present to provide language assistance.

9.  By the Leave Decision, the Judge refused to grant leave to apply for judicial review.  His reasons were stated at [14] - [21] of the Leave Decision:

“14.  For his complaint in Ground (1)  of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

15.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without any difficulty. In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process, nor do I find this ground reasonably arguable for his intended challenge.

16.  As for his complaint under Ground (2)  of not being provided with language assistance for his appeal to the Board, it is clear that the Applicant was assisted by an interpreter in his appeal hearing before the Board during which he never raised any such issue, and in the absence of any relevant particulars or specifics or elaboration from him to demonstrate that the basis of his claim might have been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without basis.

17.  As regard his complaint under Ground (3)  that the Board just relied on COI without proper understanding of the situation in India, again the Applicant failed to provide any relevant details or particulars in support of this complaint, and upon examination of those COI referred to by the Director and considered by the Board, I do not find any basis in this complaint of the Applicant either.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

21.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THIS APPEAL

10.  In his Notice of Appeal filed on 12 March 2024, the applicant complained that he was unfairly disadvantaged in comparison to represented litigants.  He asserted that he did not receive any Notice of Hearing or the court’s letter regarding further submissions.  He also complained about the Judge’s failure to acknowledge his language incapability and that it was unfair as he was not provided with any language or legal assistance.  He also complained that he failed to find any free legal representation and that he was not able to handle the legal jargons.  He was only able to seek help from a friend who was familiar with English.  The lack of legal representation also made it impossible for him to specifically point out the error in the judgment and that caused procedural unfairness to him.  He also requested for a hearing with an interpreter arranged.

DISCUSSION

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, supra, at [14(6)]).

12.  In our view, the applicant’s allegations have no substance.  At the outset, we noted that the applicant failed to point out with specific particular any error of law in the Leave Decision.  His assertions are thus not proper grounds of appeal.  As to his complaints regarding the lack of language and legal assistance, we noted that all of the court documents filed by the applicant in this appeal as well as before the court below are in English.  Clearly, the applicant is at the least able to obtain assistance in English.  Moreover, it has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and 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: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas[2018] HKCA 15 at [11] and Re Tariq Farhan[2018] HKCA 17 at [11]. Accordingly, there is no merit in his allegations and we see no prejudice suffered by the applicant from the alleged lack of language or legal assistance.

13.  For the above reasons, the applicant’s appeal has no merit and is hereby dismissed.