GILL SUMIT v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 212/2024, [2024] HKCA 901

On Appeal From [2024] HKCFI 1353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 212 OF 2024

(ON APPEAL FROM HCAL NO. 1267 OF 2019)

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J U D G M E N T

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Hon Cheng J (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 21 May 2024 ([2024] HKCFI 1353)  (“the Leave Decision”)  refusing the applicant’s 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 17 April 2019 (“the Board’s Further Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 7 March 2017 (“the Director’s Further Decision”)  refusing his non-refoulement claim on the basis of BOR 2 risk[1].

2.  We heard the appeal on 25 September 2024.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

BACKGROUND

3.  The applicant is a national of India.  He arrived in Hong Kong with his elder sister on 17 July 2014 but both were refused entry by the Immigration Department.  On the same day, he raised a non-refoulement claim on the basis that if refouled, he would be harmed or killed by his paternal uncle over a land dispute between his father and his uncle in his home district.  Details of the applicant’s claim were summarised by the Judge at [1] – [7] of the Leave Decision.

4.  By a Notice of Decision dated 16 October 2014 (“the Director’s First Decision”), the Director dismissed the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed against the Director’s First Decision to the Board.  However, the applicant failed to attend the scheduled hearing.  Accordingly, the Board proceeded to consider and determine his appeal on papers.  By the decision dated 19 August 2016 (“the Board’s First Decision”), the Board dismissed the applicant’s appeal, and confirmed the Director’s First Decision.  The Board’s reasons were summarised by the Judge at [11] of the Leave Decision:

“11. In its decision the Board found material inconsistencies discrepancies and contradictions in the evidence of both the Applicant and his sister that it doubted the credibility of their claims of fear of harm from their uncle over their land dispute that caused them to leave their country to come to Hong Kong to seek protection, that the credibility of their claims were further undermined by their failure to attend the scheduled hearings so as to clarify and explain those inconsistencies and discrepancies that the Board concluded that they had failed to establish that they would be at any real or substantial risk of being harmed by their uncle upon their return to India that both their claims for non-refoulement protection failed on all the applicable grounds.”

6.  On 6 January 2017, the Director on his own initiative invited the applicant to submit any additional facts for consideration of his non-refoulement claim on all applicable grounds including BOR 2 risk.  After receiving and considering his additional facts, by the Director’s Further Decision, the Director dismissed the applicant’s claim.

7.  On 20 March 2017, the applicant appealed against the Director’s Further Decision to the Board.  An oral hearing was conducted before the Board on 12 March 2019 and the applicant gave evidence.  After the hearing, by the Board’s Further Decision, his appeal was dismissed on 17 April 2019.  In essence, the Board found similar inconsistencies, discrepancies and contradictions in the applicant’s evidence as before and that he failed to establish a personal and real risk to substantiate his claim under BOR 2 risk.

THE JUDGE’S DECISION

8.  On 10 May 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Further Decision.  His grounds of review were summarised by the Judge at [15] of the Leave Decision:

“(1)  That the Board determined his BOR 2 claim unfairly and unlawfully without giving him any screening interview or assistance for him to understand the BOR 2 ground which was detrimental to his case;

(2)  That the Board had merely adopted a formula and biased approach in assessing his claim by relying on the same COI as before in assessing the ineffectiveness of the police in India or the overall condition or the efficiency of the judicial procedures or any objective indication of any positive results in reform in his home country;

(3)  That the Applicant was not given legal representation for his BOR 2 claim which should be considered procedural unfairness; and

(4)  That the hearing bundle provided to him for his appeal before the Board without translations for the documents which are in English but which the Applicant was not familiar with and without knowing their contents were detrimental to his appeal before the Board and was procedurally unfair to him.”

9.  The applicant appeared in person in the oral hearing before the Judge on 7 May 2024 and a Punjabi interpreter was also present to provide language assistance.  On 21 May 2024, the Judge refused to grant leave to apply for judicial review and gave his reasons at [16] to [25] of the Leave Decision.  In essence, the Judge found that the applicant’s grounds were not reasonably arguable as:

(1)  his assertions were mainly vague and bare without specific particulars; [5]

(2)  his complaint of not having a screening interview for his BOR2 claim was factually incorrect as he attended a hearing before the Board; [6]

(3)  there was no absolute right to legal representation and in any event the applicant had the benefit of free legal representation when his claim was previously screened by the Director;[7]

(4)  he never raised any issues as to language problem before the Board and his complaint about the lack of language assistance had no merit;[8] and

(5)  the Board previously found that internal relocation would be available to the applicant.[9]

10.  In the absence of any error of law or procedural unfairness or failure to apply high standards of fairness in the process before the Board, there was no reasonably arguable basis to challenge the Board’s Further Decision.[10] Accordingly the Judge refused his application for leave to apply for judicial review.

THIS APPEAL

11.  In his Notice of Appeal filed on 29 May 2024, the applicant mainly repeated his complaints in relation to the lack of legal and language representation.  He also complained that the Judge did not consider any discussion of his grounds and did not arrange a hearing where he could explain his fear and relevant matters to the court.  He also complained that there were no avenues for a non-refoulement claimant to appeal against decision made purely by credibility, and such was procedural unfair and a legal error.  He complained that there had been unfairness and legal error in the Board’s Further Decision.

12.  Pursuant to the directions of the Registrar of Civil Appeals dated 29 May 2024, the applicant lodged his written submissions on 28 August 2024.  In those submissions, he reiterated that there had been a lack of legal and language assistance and the Board’s Further Decision was never read back to him, and that there had been procedural unfairness.

13.  We heard the appeal on 25 September 2024.  A Punjabi interpreter was present to provide language assistance.  At the hearing, the applicant confirmed he had nothing to add to his written submissions.

DISCUSSION

14.  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 will 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 were a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

15.  Further, the assessment of evidence, Country of Origin information, 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: Re Kartini [2019] HKCA 1022.

16.  In our view, the applicant’s case is a non-starter.  He mainly reiterated the same complaints which had already been considered and rejected by the Judge.  As correctly pointed out by the Judge at [18] to [21] of the Leave Decision, neither Sakthevel Prabakar v Secretary for Security (2004)  7 HKCFAR 187 nor FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for protection against BOR2 or BOR3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18] and Re Zahid Abbas [2018] HKCA 15 at [11].  The applicant had free legal assistance in relation to the assessment of his non-refoulement claim by the Director.  Although he had no legal representation before the Board and the Judge, the assessment of his non-refoulement claim by the Board and the consideration of his application for leave to apply for judicial review by the Judge were thorough and fair.  We consider that a high standard of fairness was achieved in the overall process of the determination of his non-refoulement claim.

17.  Further, it is trite that the high standard of fairness required by law does not entail an interpretation service being made available to an applicant at all times as he desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  We note that the court documents filed in this appeal and in the Court below were all in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  

18.  Moreover, it was also factually incorrect for the applicant to assert he was not given any oral hearing before the Judge, when he attended the oral hearing held on 7 May 2024 and made submissions with the assistance of a Punjabi interpreter. Also, as rightly pointed out by the Judge, the applicant never raised any issue as to language problems during the hearing before the Board.  Accordingly, we see no real prejudice being suffered by the applicant in relation to his alleged lack of language and legal assistance. 

19.  His complaint that there was no avenue for a non-refoulement claimant to seek an appeal against a decision made purely on credibility is equally without merit, as the applicant had the opportunity to challenge against the Board’s Further Decision by way of judicial review.  As the Board had the advantage of assessing the applicant’s demeanor and his evidence, the court will not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  The applicant’s complaint plainly fails.

20.  In any event, we have considered the Leave Decision carefully and are unable to see any arguable ground of appeal against the decision.  The Judge considered all allegations raised by the applicant comprehensively and gave detailed reasons for his decision.  We see no basis to disturb the Leave Decision.

21.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.