RAI PRATAP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 181/2020

[2025] HKCFI 2028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 181 of 2020

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court

(1)   Form 86 be amended, naming only the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and the Director of Immigration as the Putative Respondent and the Putative Interested Party respectively.

(2)   The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 dated 16 January 2020 (“Form 86”), the Applicant applies for leave to apply for judicial review (“the Leave Application”) of (i) the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) dated 23 December 2019 (“the Board’s Decision”); (ii) the decision of the Director of Immigration (“the Director”) dated 12 June 2015; and (iii) the further decision of the Director dated 21 April 2017 (“the Director’s Decision”).  The Board’s Decision confirmed the Director’s Decision, which rejected the Applicant’s non-refoulement claim on the ground of BOR2.

2.  In Form 86, the Applicant has mistakenly referred the Director as one of the proposed respondents and the Board as one of the interested parties, which I have corrected on my own motion.

Background

3.  The Applicant’s personal background, the incidents alleged to show that he would be harmed or killed in India as he refused to marry his ex-girlfriend, and the immigration and procedural history, etc. were set out in the Board’s Decision.  It is not necessary for me to restate them here.  For completeness’ sake, reference can be made to the Board’s Decision, the hyperlink to which is included below[1]. The Board’s abbreviations and descriptions are adopted below unless otherwise indicated. 

Discussion

4.  First and foremost, neither of the Director’s decisions is open to challenge.  The decision of an immigration officer is not a decision that is within the administrative structure susceptible to judicial review once an appeal to the Board is pursued by the claimant (see Re Moshsin Ali [2018] HKCA 549 at §45; Salvador Eric Garcia v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office & Another [2020] HKCFI 166 at §14; Re Jyoti Gurung [2022] HKCA 1884 at §13, etc.). As can be seen from the record: 

(1)  The Applicant’s previous claim for non-refoulement on the grounds of Torture Risk, BOR3 Risk, and Persecution Risk was dismissed by the Director on 12 June 2015.  He filed the appeal on 22 June 2015, which was dismissed by the Board on 22 February 2017 after an oral hearing.  The hyperlink to the Board’s decision dated 22 February 2017 is included below[2].

(2)  On 30 March 2017, the Director, on his own initiative, decided to canvass the issue of BOR2 Risk and invited the Applicant to submit, within 14 days, any further material for consideration.  Despite the Applicant’s indication on 13 April 2017 that he intended to submit additional documents for consideration, he ultimately did not do so.

(3)  On 21 April 2017, the Director determined that the claim based on BOR 2 Risk was not established and issued the Director’s Decision to the Applicant on the same day.

(4)  On 2 May 2017, the Applicant appealed the Director’s Decision to the Board.  On 23 December 2019, the Board confirmed the Director’s Decision.

5.  I am not convinced that the Applicant’s intended challenge of the Board’s Decision, primarily due to the lack of language assistance and legal representation, along with his alleged inability to understand English and the Board’s failure to provide adequate reasoning, is reasonably arguable with any realistic prospects of success (see Peter Po Fun Chan v Winnie Cheung & Another (2007) 10 HKCFAR 676).

6.  The Applicant expresses that he does not know English and struggles to seek help or ask others to translate for him consistently. He finds it very difficult to correspond and communicate personally in a language with which he is uncomfortable.  He believes that language assistance should be provided by Hong Kong government to him whenever required and asserts that such procedural unfairness should not be tolerated. 

7.  However, since the Applicant has chosen to come to Hong Kong, a place where the official languages are Chinese and English, he must take responsibility for managing his language disability and should not expect all documents to be fully translated into his native language.  It is crucial that a claimant does not have an absolute right to free language assistance at all stages of the proceedings.  As affirmed by the Court of Appeal in Karamjit Singh, CACV 78/2018 (unreported, 2 August 2018), it could not have been the intention of any authority establishing the principle that a high standard of fairness includes the provision of interpretation services whenever an applicant desires or requires them.

8.  Similarly, 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 prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings (see Re Zafar Muazam, CACV 2/2018, (unreported, 23 March 2018), Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37).

9.  Considering the overall context of the situation, it is clear that the Applicant did not suffer any prejudice from the lack of language assistance and legal representation before the Board.  He did not raise any complaints regarding the absence of language support or legal representation before the Board.  It was evident, from the Board’s Decision, that he encountered no difficulties related to language or legal representation. The Board had also dismissed his case on grounds that were not, or could not be shown to be, related to miscommunication or misunderstanding of his claim based on BOR 2:

(1)  When the Applicant appealed to the Board against the Director’s Decision, he claimed, in the Notice of Appeal/Petition, that he had not received the Director’s invitation letter before the issue of the said decision. However, the invitation letter was sent to his address in Yaumatei, and a copy was also posted to the Duty Lawyer Service on the same day.  No notice of non-delivery was received from Hong Kong Post.

(2)  The Board therefore did not accept the Applicant’s assertion that he had not received the invitation letter.  It was important to note that he wrote to the Director on the last day of the deadline, stating he had materials to submit. This indicated that he had indeed received the invitation letter.  Therefore, when he claimed not to have received it, the Board found him to be dishonest.

(3)  In any event, regardless of whether the Applicant received the invitation letter, he had written, under “Grounds of Appeal/Petition”, over 5.5 pages on A4 paper in print.  This demonstrated that he had ample opportunity to express his views.

(4)  The Applicant’s other grounds for appeal had been written in wording virtually identical to numerous others that the Board had seen.  This suggested that he may have simply copied from a ‘precedent’ without providing independent or original input.

(5)  The Board noted that there were numerous repetitions in the content submitted by the Applicant.  It was clear that he complained that the Immigration Officer had failed to conduct sufficient research into the COI.  However, he did not provide any supporting materials for this complaint.

(6)  It was noted by the Board that in simply copying from a ‘precedent’, the Applicant made errors, including getting his own country wrong.  This demonstrated the phenomenon of blind copying.

(7)  The Board also criticized the Applicant for producing bare assertion without support and repeating the allegations in his USM case.

10.  I note that the Applicant mentioned obtaining help from his friends to lodge the Notice of Appeal, as he was not able to write in English.   However, he did not indicate that he had not actually reviewed these materials before submitting them to the Board.  In other words, the materials submitted should have been approved by him prior to submission.

11.  The Board had arranged a new hearing to assess the Applicant’s allegation regarding the continuation of his risk and to determine whether he had comments on the updated COI materials.  During the hearing, the Applicant never complained that he was not given a proper opportunity to respond, nor did he indicate that he had not been adequately informed of his rights of BOR 2 or that he did not fully understand the situation.  He also did not express that he was confused about his case or why he was not referred to the Duty Lawyer Service:

(1)  Conversely, the Applicant testified and confirmed that he had nothing to add to the Hearing Bundle, nor was there any error in the information he had provided that he wished to correct.  He agreed that all statements regarding his family members were hearsay (as he had been away from home).  During the oral hearing, he stated that the “new false cases” against him and his family members were not criminal cases.  He also mentioned that had not seen or heard of any First Information Report (“FIR”) about the arson to his home.

(2)  When the Applicant was questioned regarding the COI, he provided answers suggesting that (i) he had not heard of Love Commandos; (ii) “it is possible [that] I can get help from the police if attacked”; (iii) he did not know about any of the population figures; and (4) if relocated, “it will be obvious I am from elsewhere (than the big cities)”, and the level of risk of Rena’s family locating him elsewhere in India was “medium”.

12.  In light of the above matters, the Applicant’s current complaints about the lack of assistance are altogether unfounded and cannot be substantiated.

13.  Turning now to other matters raised by the Applicant, he states that he has not been represented and finds it impossible to understand the Board’s Decision.  He has prepared Form 86 without legal representation and reserves the right to submit additional and/or amended grounds and documents in support of his leave application.  He contends that without knowing the reasons for the Board’s Decision, he cannot determine if the Board provided adequate justification, thereby depriving him of the opportunity to respond appropriately before the Court.

14.  However, the provision of translation after the Board’s Decision was made could not reverse the outcome.  Regarding his complaints about difficulties in preparing for his leave application, he has had ample time to prepare for the oral hearing and could have sought assistance from those available to him.  His supporting affirmation indicates that he has had access to language assistance.  I also note that he did not make any submissions related to the grounds of language and legal assistance during the oral hearing, instead citing health conditions and other personal matters, such as the need for regular medication in Hong Kong.   

15.  I have considered the decision of the Board with vigorous examination and anxious scrutiny, applying an enhanced standard in view of the seriousness of the issues at hand (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).  After reminding itself that the issue was the BOR 2 Risk to the Applicant’s life and considering the totality of evidence, including the COI materials and the discussions in the USM case, the Board was not satisfied that the Applicant had successfully established any substantial risk to his life in India, especially if he lived elsewhere than his home locality (Sonapindi Village, Darjeeling).

16.  The above assessment was within the province of the Board.  In the absence of any valid public law errors or grounds being shown, the role of the Board should not be usurped.  The Court’s role in a judicial review is not to provide a further avenue of appeal (see Re Zunariyah (supra); Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163).

Conclusion

17.  I accordingly make an order that Form 86 be amended as described above and the Leave Application herein be dismissed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1