JASWINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 421/2018

[2019] HKCA 230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 421 OF 2018

(ON APPEAL FROM HCAL NO 850 OF 2017)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 14 August 2018, refusing to grant the applicant leave to apply for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 5 October 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 12 February 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived their rights to have an oral hearing. We shall proceed to consider this appeal on paper 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 1607.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a National of India. The applicant came to Hong Kong as a visitor on 16 April 2015 and was permitted to stay until 30 April 2015.  He did not depart and overstayed since 1 May 2015.  On 4 May 2015, he surrendered to the Immigration Department and on 31 August 2015, he lodged his non-refoulement claim. The applicant’s claim was based on his fear of being harmed, or even killed, by a group of drug traffickers as he had seen them trafficking dangerous drugs.

5.  By a Notice of Decision dated 25 July 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 3 risk, torture risk, and persecution risk.  By a Further Notice of Decision dated 9 August 2017, the Director also rejected the applicant’s claim on BOR 2 risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decisions.  After an oral hearing on 10 October 2017, the Board dismissed the appeal on 20 October 2017.  The Board found that the applicant’s claim on his alleged assault was based essentially on unreliable and incredible assertions, hearsay and speculation. The applicant alleged that upon his discovery of drug trafficking in the farm where he worked, he was confronted by ten unknown men chasing him with hockey sticks but he managed to escape.  After due consideration of all the evidence, the Board was not persuaded that the applicant had been threatened or attacked or otherwise ill-treated by drug dealers or by anyone in the past,and did not see any real chance of him being harmed or otherwise ill-treated upon his return to India.  The Board concluded that the applicant had failed to establish his claim under all applicable grounds and the appeal was rejected.

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 6 November 2017 did not contain any grounds and the supporting affirmation filed on the same day set out the following grounds for the applicant’s intended challenges :

(1)  lack of legal representation in his appeal before the Board;

(2)  lack of language assistance for not providing him with any translation of his non-refoulement claim form (“NCF”) to enable him to find out if the interpreter had translated the basis of his claim properly;

(3)  failure on the part of the Director to give proper explanation for rejecting his claim under BOR 2 risk and for ignoring COI which show malpractice in the judicial system in India; and

(4)  wrongful exercise of case management power on the part of the Director for failing to consider his COI thoroughly and for improperly relying on COI in rejecting his claim.   

8.  On 14 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 [9] – [15] for his refusal to grant leave :

“ 9. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that 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 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

10. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

11. As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

12. Regarding his ground (3) it is plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 3 – 6 of his Notice of Further Decision and in the absence of any response from the applicant to his invitation to submit additional facts relevant to BOR 2 risk, the Director was entitled to reject his claim on the facts and evidence already presented on his behalf by his legal representation.  There is simply no merit in this ground of the applicant.

13. As for ground (4) over the Director’s reliance of COI in the assessment and consideration of his claim, in the absence of any particulars or specifics or elaboration from the applicant, I fail to see how the Director had erred with his assessment, and upon examination of those COI listed and referred to in his decision, I do not find any merits in this complaint of the applicant either.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

15. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THE APPEAL

9.  The applicant filed the Notice of Appeal on 28 August 2018 in which he set out the following ground of appeal :

“ The grounds of this appeal are that the Plaintiff (the applicant) will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

10.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeals in non-refoulement cases :

(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.  Though 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 evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board (Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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, 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 it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

DISCUSSION

11.  In this appeal, this Court 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.   It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  We see no merit in the ground of appeal as it did not identify any error in the Judge’s decision.  The appeal plainly has no prospect of success.

12.  In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the Judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter of the Board, not for the court. We do not see any reasonable basis to upset the decision of the Board by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

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