RE BALWINDER RAM

CACV 278/2017

[2018] HKCA 171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 278 OF 2017

(ON APPEAL FROM HCAL NO 180 OF 2017)

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JUDGMENT

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 24 November 2017­ refusing leave to the applicant to apply for judicial review. The applicant came from India to Hong Kong on 23 June 2014. His permission to remain here expired on 7 July 2014. Since then he overstayed illegally. He was arrested on 13 July 2014. On 15 July 2014, he lodged a non-refoulement claim. The claims were based on the threat to his life. According to the applicant, he married his wife who is of another caste. Her uncle attacked him and he had to flee.

2.  The Director decided against the claims on 25 May 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”).  By a Further Decision of 7 February 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 13 February 2017, the Board dismissed the appeals on 7 April 2017 (“Board Decision”).

4.  The intended judicial review was in respect of the Director Decision and the Board Decision.  The Form 86 filed by the applicant on 5 May 2017 did not give any ground for judicial review.  In his affirmation of 5 May 2017, he relied on the following grounds:

(1)   Lack of legal representation in the determination of his BOR 2 risk and in the Board.

(2)   All the correspondence with the authorities were in English.  The applicant ought to have been provided with an interpreter.

5.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [20] to [25] of the CALL-1 Form of 24 November 2017:

“ 20. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and adjudicator’s decision to be without fault. They analysed the material, claims and evidence carefully. The applicant’s complaints against them and the procedure undertaken are not made out.

21. The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor to assist him with the further determination by the Director of the BOR 2 risk. The court was reminded that a ‘high standard of fairness’ should be maintained but legal representation for this applicant only extended to the claim process before the Director. Once the Director dismissed his claim the applicant received no further free legal advice or assistance. The applicant submits this is a ‘violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice’.

22. It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held ‘high standards of fairness’ must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44. That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim. That approach for the adjudicator is paramount and cannot be stressed enough. However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice. The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair. The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases. Their assessment is on a case-by-case basis. The applicant agreed in the hearing that he had approached the duty lawyer scheme and requested representation for his appeal only to be refused by the scheme because they were of the view that there was no merit in his appeal. This ground is not reasonably arguable.

23. The second ground is a complaint that since then all correspondence with the authorities are in English, be it written or spoken. Therefore, he submits the government should provide an interpreter to the applicant as and when required, I quote from paragraph 9 of the affirmation ‘so as to avoid jeopardising my rights’. He provides no further particulars, for example, as to when this has been a problem. This ground is not reasonably arguable.

24. I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

25. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

6.  In the notice of appeal of 5 December 2017, the applicant repeated the grounds in the Form 86.  Further, while the applicant does not dispute that the Duty Lawyer did not represent him in the appeal to the Board because they took the view that there was no merit, it did not indicate that the Duty Lawyer could have possibly foreseen the same in relation to his claim under BOR 2 risk.  Lastly, the learned judge ought to have communicated tothe applicant her view that the ground concerning the absence of an interpreter contained no particulars.

7.  The applicant agreed by a letter of 5 December 2017 that the appeal can be heard by two judges.

8.  Notwithstanding the direction made by Master Simon Leung, Registrar of Civil Appeals on 8 January 2018 reminding the applicant of his obligation to lodge skeleton submissions, he did not lodge any submissions in the appeal.

9.  We heard the appeal on 20 March 2018.

10.  Having considered the submissions of the applicant in light of the materials before us, we found the judge’s observations to be justified.

11.  The Board found the evidence given by the applicant not credible (see §125(1) of the Board Decision).  Further, the Director and the Board had found that state protection is available (§15 of Director Decision and §118 of Board Decision).  There is no scope for finding risk of torture based on the concept of state acquiescence.

12.  The finding of the Director and the Board (which the judge found no ground to disturb after rigorous and anxious scrutiny) was that there is no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatments which meets the high threshold as required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

13.  The applicant complained about the lack of legal representation in the proceedings in the Immigration Department and the Board. The applicant did not provide any particulars as to the information he could have put forward but failed to due to lack of legal representation. 

14.  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 of 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.  The applicant already had the benefit of legal representation in presenting his case to the Director.

15.  Even now, the applicant did not state or outline what information regarding BOR 2 risk he wished to provide.  On the facts of the case, we are of the view the assessment of BOR 2 risk could effectively be made on the same materials present on his behalf with the assistance of lawyers in other respects.

16.  The applicant also had the opportunity to advance his case fully, including his case on BOR 2 risk, before the Board.  We do not find anything amiss arising from lack of legal representation in the process before the Board.

17.  We do not see any merit in the argument based on lack of legal assistance regarding BOR 2 risk on the facts of this case. 

18.  The applicant also complained about the lack of language assistance.  It is clear from the written decision of the Board that there were interpretation services available at the hearing before the Board.   

19.  We do not see any error of law or procedure in the proceedings before the Director or the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

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