RE GURBACHAN SINGH

CACV 299/2018

[2018] HKCA 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 299OF 2018

(ON APPEAL FROM HCAL 893/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 29 June 2018 refusing leave to the applicant to apply for judicial review. 

2.  Due to the non-compliance with an unless order of 30 August 2018, the hearing for this appeal (originally fixed for 14 November 2018) was vacated and this appeal is processed on paper based on the materials already lodged according to the practice adopted by this Court: see 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. 

3.  This is our judgment in the appeal.

Background

4.  The applicant is a national of India.  He arrived in Hong Kong on 9 November 2013 and was permitted to remain as a visitor for 14 days.  He did not depart despite the expiry of his permission to remain, and overstayed illegally.  He was arrested by the police on 2 December 2013 and lodged his claim for non-refoulement protection on 5 December 2013. 

5.  The applicant’s claim was based on the allegation that, if refouled, he would be ill-treated by his paternal uncle due to a land dispute between them. The applicant also claimed that his uncle was an influential member of the Indian National Congress (“ICP”), whereas he was a supporter of the Bharatiya Janata Party (“BJP”).  The facts of this case were summarized by the judge in [3] – [5] of the CALL-1 Form dated 29 June 2018, [2018] HKCFI 1434.

6.  By two notices of decision dated 26 July 2016 and 3 July 2017, the Director of Immigration rejected the applicant’s claim for non-refoulement protection.  The former notice covered the BOR 3 risk[1], the persecution risk[2] and the torture risk[3], whereas the latter covered the BOR 2 risk[4].

7.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 4 October 2017.  After hearing the applicant, the board did not find him to be a reliable witness.  Based on evidence available to it, the board did not accept that the applicant left his home area in fear of being harmed by his paternal uncle because of the land dispute.  The board found that the applicant had fabricated his case to create a claim for non-refoulement protection.  The board found no substantial ground for believing that the applicant would face a real risk of being ill-treated if refouled.  The applicant's appeal was dismissed on 3 November 2017.

The judge’s decision

8.  On 16 November 2017, the applicant applied to the court for leave to apply for judicial review.  The intended judicial review was in respect of the decision of the board.  While the form 86 contained no grounds for seeking relief, the applicant set out the following grounds in his affirmation in support of the application:

(1) the applicant was not given any legal representation throughout his appeal/petition with the board, which amounted to a violation of the high standards of fairness and miscarriage of justice;

(2) the applicant was not given any translation of his Non-Refoulement Claim Form (“NCF”) and could not ascertain whether the interpreter had correctly translated the basis of his claim;

(3) he was also not given any assistance for furnishing additional facts in support of the assessment of the BOR 2 risk, and the risk was determined by the director without having a screening interview and without proper reason;

(4) the board had wrongly exercised its case management power in failing to give due weight to the photographs showing the injuries of the applicant and to the corrupt practices of the Indian police; and

(5) the board wrongly excused the attendance of the director in the appeal hearing before it and the applicant was not given a chance to submit additional facts for the assessment of the BOR 2 risk.

9.  The judge held an oral hearing on 11 May 2018. After giving due consideration to the decisions of the director and the board, the judge gave the following reasons in refusing leave at [12] to [19] of the CALL-1 Form:

“ 12. 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.

13. 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 difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

14. As for his complaint under ground (2) of not being providedwith a translation of his NCF, it is clear that his NCF was completedon his instructions to his legal representation from DLS, and that hewas assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

15. Regarding his ground (3) it is plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 3 – 5 and 7 of his Notice of Further Decision in that the additional facts and document provided by the applicant were properly considered by the Director with reasons given for the rejection of his claim under BOR 2 risk. There is simply no merit in this ground of the applicant.

16. As for ground (4) in which he complains that the Board did not give proper or sufficient weight in his hand’s injuries when considering his claim, I find that the Board in fact did so as evidenced in paragraph 55 of the decision when the adjudicator did take into consideration of the documentary evidence including photographs provided by the applicant and accepted that he did sustain injuries to his hand and arm, but found that they did not provide independent corroboration that the injuries were sustained in the manner claimed by him or that his uncle or his men were responsible for inflicting those wounds, and that having found the applicant to be an unreliable witness the Board therefore did not accept that those documentary evidence provide independent corroboration of any aspect of his claim, and therefore placed no weight on them as corroborative evidence supportive of his claim, something which the adjudicator was entitled to do so as the primary decision-maker having the benefit of hearing the applicant in the evaluation of all the evidence before the Board, and I do not find any merits in this complaint of the applicant.

17. Regarding his complaint under ground (5) over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which isa rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board. There is simply no basis or merit in this ground of the applicant either.

18. 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.

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

The appeal

10.  On 24 July 2018, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

(a) the applicant had not been given legal representation in presenting his case to the director for the consideration of the BOR 2 risk;

(b) the applicant had not been given assistance in submitting additional facts or information at the invitation of the director for the assessment of the BOR 2 risk; and

(c) the NCF was not translated, or not read back to him by an independent interpreter, such that there was no way for him to find out if the NCF was accurate.

11.  By a letter dated 13 July 2018, the applicant consented to this appeal being heard before a two-judge court.

Discussion

12.  In the present case, the board rejected the applicant’s claim for non-refoulement protection due to its adverse finding on the applicant’s credibility.  The applicant did not advance any arguable basis to challenge this finding.  The judge, after rigorous examination and anxious scrutiny, did not find any public law grounds that warrant the court’s interference with the board’s decision. 

13.  The grounds advanced by the applicant in the notice of appeal had been duly considered and rejected by the judge.  Repeating the same arguments in this Court is of no avail.

14.  Furthermore, on the facts of this case and the materials presented by the applicant, we cannot see any basis for the applicant to advance a case for non-refoulement protection under the BOR 2 risk when his claim based on other grounds was duly rejected.  There is no basis for suggesting that the assessment for the BOR 2 risk would be different from the assessment for other risks. 

15.  Having considered the materials available before us, we cannot find any ground that justifies a reversal of the judge’s decision either.  In our view, the judge’s observations are fully justified.  We agree with the judge that leave to apply for judicial review should be refused.

16.  For these reasons, we dismiss the appeal.