RE SAHOTA TARSEM SINGH

CACV 430/2018

[2019] HKCA 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 430 OF 2018

(ON APPEAL FROM HCAL NO. 1089 OF 2017)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 13 August 2018, refusing to grant leave to the applicant to apply for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 26 September 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 2 January 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on papers based on the materials already lodged according to the practice adopted by this Court: 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.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1844.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of India.  He first came to Hong Kong on 14 March 2015 and was allowed to stay as a visitor until 28 March 2015.  He did not leave and had overstayed since 29 March 2015.  On 15 April 2015, he surrendered to the Immigration Department and on 27 July 2015, he lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by the drug dealers or gangsters and the politicians.  Further, the Indian police also intended to kill him or frame him up in a false case because they were bribed or received political pressure from the politicians.

5.  By a Notice of Decision dated 26 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 2 risk, BOR 3 risk, torture risk and persecution risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decision.  After an oral hearing on 16 November 2017, the Board dismissed the appeal on 1 December 2017.  The Board found that the applicant’s account of events was implausible and inconsistent and that his evidence was unreliable and incredible.  Even on the applicant’s own evidence, he did not suffer any serious injury from the various attacks and thus the Board assessed the level of risk of harm to be low.  The Board noted from relevant COI that although there was corruption in India including police misconduct and abuse, the Indian government had taken measures to address the problem.  The Board found that reasonable state protection was available to the applicant and internal relocation should also be a viable option.  The Board confirmed the decision of the Director and found that the applicant had failed to establish his non-refoulement claim under all applicable grounds.

The Judge’s decision

7.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 15 December 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant put forward the following grounds against the Director’s and the Board’s decisions:

Against the Director

(1)   failing to properly consider the presence of state acquiescence;

(2)   failing to consider that the Indian police and the administration were corrupt and incompetent;

(3)   failing to give weight to the relevant COI that supported his case;

(4)   taking unfair attitude in making the decision;

(5)   rendering unreasonable decision;

(6)   failing to attain the high standard of fairness.

Against the Board

(7)   failing to make sufficient enquiry to his case;

(8)   failing to appreciate that he had limitation in adducing evidence while in custody;

(9)   failing to give him sufficient chance to arrange relevant evidence to support his case at the appeal hearing.

8.  On 13 August 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [41] – [52] for his refusal to grant leave:

“Discussion

41. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

42. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

Legal assistance

43. The Applicant said that he had not prepared his case well because there was no one to help him.

44. The Applicant was represented by the Duty Lawyer Service until the Director rendered his decision on 26 July 2017. He was not given further legal assistance for his appeal to the Board.

45. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Detention

46. The Director interviewed the Applicant twice in July 2017 and the Adjudicator heard him on appeal in November 2017. The Applicant was in custody at those material times. He was imprisoned from November 2016 to September 2017 for illegal employment and then further detained by the Immigration Department till January 2018.

47. The Applicant complained that due to the custody he could not produce certain photographs and documents to the Director and the Adjudicator. He did not say what the alleged photos and documents could prove.

48. It is doubtful whether the alleged photos and documents existed at all in light of the Applicant's dubious allegation that those things had been destroyed in a fire shortly after he was released from detention.

49. The Applicant lodged his non-refoulement claim as early as July 2015. He had much time to prepare for the screening process before he was arrested for illegal employment in November 2016. Even though in custody, if the Applicant really had anything to submit he could ask for assistance bearing in mind he was represented by the Duty Lawyer Service up to the Director's decision dated 26 July 2017 and his wife had also come to Hong Kong.

50. I do not accept the Applicant had proper grounds to complain that he had been deprived of any chance to fully prove his claim before the Director and the Adjudicator.

Other complaints

51. The Applicant had other complaints against the Adjudicator and the Director. They were vague. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

52.   The Applicant’s complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

The Appeal

9.  The applicant filed the Notice of Appeal on 31 August 2018 in which he set out the following grounds of appeal:

“1. I stand by my grounds in seeking leave to apply for judicial review, namely, (in paragraph 35) Enclosure 2 of Form 86, the applicant complained the Director failed to properly consider state acquiescence and state protection; failed to consider police collusion and misconduct; failed to consider corruption and incompetence of the administration in India; failed to give sufficient weight to COI favourable to his claim; being prejudicial with preconceived conclusion; rendered unreasonable decision; failed to attain high standard of fairness.

2. I also disagree with the dismissal of my case by Deputy High Court Judge Josiah Lam on the basis that leave was not granted because my grounds were vague and there was no reasonable opportunity provided to me to elaborate the points.”

Discussion

10.  Ground 1 is clearly concerned with alleged errors committed by the Director which was canvassed at the lower court hearing and duly and correctly rejected by the Judge.  It does not identify any error in the Judge’s decision, and is thus not viable ground of appeal. 

11.  Ground 2 is a bare allegation without basis.  Although the applicant was in custody, we note that he was able to obtain assistance to prepare Form 86 and proceed with his appeal without difficulty.  His appeal case was heard by the Judge in which he was provided with interpretation and every opportunity to explain his case.  In view of the aforesaid, we fail to see any proper basis for the applicant’s complaint.  Ground 2 is devoid of merit and doomed to fail.

12.  We agree with the Judge that the applicant’s complaints are not reasonably arguable and leave to apply for judicial review should not be granted. 

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.