RE DHALIWAL BALJIT SINGH

CACV 578/2019

[2020] HKCA 304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 578 OF 2019

(ON APPEAL FROM HCAL NO 1086 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving the judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan[1] who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

Background

2.  The applicant is a national of India.  He arrived in Hong Kong illegally in early December 2015 and was arrested on 8 December 2015.  He then raised a non-refoulement claim on the basis that he would be harmed or killed by his brother over a property dispute.

3.  The details of the applicant’s claim have been summarized by the Judge at [2]-[6] of the CALL-1 Form.

The Director’s Decision     

4.  The Director of Immigration decided against the applicant’s claim on 28 September 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (“BOR 3” and “BOR 2”), as well as his other statutory and convention rights against torture and persecution.

The Board’s Decision

5.  The applicant appealed against the Director’s decision to the Board.  After a hearing held on 22 March 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 29 May 2018.

6.  The Board observed the applicant giving evidence and found him to be generally sincere and reliable and mostly direct and responsive as a witness.  The Board formed the view that the applicant was speaking from experience rather than a rehearsed account of events.  The Board concluded it was unable to confidently dismiss his evidence and claims and, affording him the benefit of the doubt, was prepared to accept that his claimed account of events was based on actual events and fact.

7.  However, the Board rejected the applicant’s case based on a lack of grounds under all four heads of risk: torture risk, persecution risk, BOR 2 and BOR 3 risk.  There was nothing to show that the feared harm would be inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or person acting in an official capacity, as stated in the definition of “torture”.  The Board found there was no state action.  There was no evidence that officials in India would withhold protection to the applicant.  The dispute was private in nature and based on purely financial and personal reasons.  There was no risk of persecution for reason of race, religion, nationality, political opinion or membership of a particular social group.  The Board did not accept that the applicant faced a real risk of being subjected to the death penalty or being arbitrarily deprived of his life in any of the claimed circumstances or for any other reason. Internal relocation was possible and the Board did not consider there were grounds to believe that the applicant’s brothers would be able to harm him if he relocated to other large cities in India.  The Board considered that it would be reasonable to expect the applicant, as a healthy 31-year-old man with considerable experience in the construction industry who had the support of his sister and her husband and a demonstrated ability to relocate to an urban metropolis (like Hong Kong), to relocate to a city such as Mumbai, Bangalore or Delhi if he returned to India, where he would not be at risk of being subjected to treatment from which he claimed he had fled.

Decision of the Judge

8.  In his application for leave to apply for judicial review, as summarised by the Judge, the applicant complained that:

(1)  he was not provided with language assistance before the Board;

(2)  he was not provided legal assistance for his appeal before the Board;

(3)  the Board failed to consider relevant country of origin information and failed to exercise case management correctly;

(4)  his claim was unfairly determined.

9.  The Judge held that even high standards of fairness did not mean that the applicant must be provided with legal assistance at all stages of the proceedings.  The applicant had the benefit of legal assistance before the Director.  He had the assistance of an interpreter before the Board.  He would be familiar with most of the documents in the hearing bundle used before the Board such as his NCF and screening records based on his information.  There was no evidence of a lack of understanding by the applicant.  Nor did he raise any issue over translation of the documents before the Board.  The complaint of failure to consider country of origin information and that his claim was unfairly determined were merely broad and vague assertions without particulars.  The Judge noted that as the risk of harm in the applicant’s claim was a localised one and it was not unreasonable or unsafe to expect him to relocate to another part of India, there was simply no justification to afford him non-refoulement protection in Hong Kong.

The appeal

10.  In the applicant’s Notice of Appeal dated 13 December 2019, the following grounds of appeal are raised:

(1)  The court and authorities did not exercise caution and diligence in handling his case as an unrepresented litigant.  It has been procedurally unfair.  He could not understand all the legal jargon or satisfy the Board of the requirements without legal assistance.

(2)  The Judge’s failure to acknowledge the applicant’s language difficulties was unfair.

(3)  The Board used a formulaic approach to deal with COI and did not provide any concrete evidence.  Considering the COI concerning the ineffectiveness, inefficiency and even corruption on the part of the police in India, the Director should not have concluded that state protection was available to the applicant.

11.  In his written submissions to this Court dated 17 April 2020, the applicant reiterated the lack of language assistance for him.

12.  The approach of this Court in dealing with cases of this nature is well established:

(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.  Although in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of the evidence and COI materials and risk of harm, state protection and viability of internal relocation are matters 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 their decisions.

(2)  An appeal against the refusal of leave by a judge of the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by 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 the appellant can demonstrate that the judge has made errors of law or failed to take account of relevant matters already placed before the Court or has taken into account irrelevant matters or his decision is otherwise plainly wrong.

(3)  In an appeal against a 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 the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the decision below, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for leave to apply for judicial review.

13.  In our view, there are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge have already made the position clear.

14.  It is not for the Judge to take a “first step” approach to investigate if the applicant had been given language assistance. The burden of proof falls squarely on the applicant to make out his case of non-refoulement: AM v Director of Immigration [2014] 1 HKC 416 at 427, and for judicial review.

15.  There is no basis to suggest that the applicant was hampered by difficulties with legal jargon at the hearing before the Board.  It is simply not true for the applicant to allege that his case was rejected on grounds of credibility.  It was not.  The Board was actually prepared to accept the applicant’s version of facts.  His claim was rejected based on a failure to establish any of the four grounds for non-refoulement protection and, in particular, on the possibility of internal relocation without risk of further harm.  The applicant’s arguments on this appeal do not, in our view, identify any relevant error in the decision of the Judge.  The applicant’s complaints with regard to lack of language and legal assistance are simply vague and broad assertions without particulars and, in all the circumstances, take his case no further.

16.  We see no error in the Judge’s decision. Accordingly the appeal is dismissed.