RE SOMA RANI

CACV 56/2018

[2018] HKCA 364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 56 OF 2018

(ON APPEAL FROM HCAL 389/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 23 February 2018 refusing leave to apply for judicial review.

2.  The applicant is an Indian national.  She arrived in Hong Kong on 9 January 2013 with a valid visa, and was allowed to remain until 23 January 2013.  She overstayed after the expiry of her permission to remain.  She surrendered to the Immigration Department on 3 March 2014 and lodged her non-refoulement claim on the same day.  Her claim was based on the fear of being harmed, or even killed, by her family because of their disapproval of her relationship with a man named Bupinder.  The applicant and Bupinder were later married in February 2014, and she gave birth to a son in Hong Kong in 2015.  Her husband and her son are now living in India.

3.  By a notice of decision dated 21 June 2016, the Director of Immigration rejected the applicant’s claim.  The director found that the applicant’s family had no real intention to kill her, but simply wanted to put pressure on her to leave her husband.  The director also considered that the availability of state protection and the viability of internal relocation would lower the risk of harm.  The decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

4.  By a notice of further decision dated 18 May 2017, the director also assessed the applicant’s BOR 2 risk[4] and determined it against her. 

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 1 June 2017, the board dismissed the appeal on 29 June 2017.  The board did not find there was any real chance that the applicant would be killed or otherwise harmed by her family if she were to return to India.  The board was also satisfied that state protection was available to the applicant and internal relocation was a viable option for her. 

6.  The intended application for judicial review was in respect of the decisions of the director and the board.  The form 86 filed on 12 July 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant advanced the following grounds for the intended application for judicial review:

(a)  the lack of legal representation;

(b)  the lack of language assistance; and

(c)  the absence of reason for rejecting her BOR 2 claim.

7.  After summarising the facts and background of the case and considering the decision of the board, the deputy judge set out her reasons in refusing leave at paragraphs 20 to 29 of the CALL-1 form:

“Application for leave to judicial review

20. The applicant has sought to judicial review the decisions of both the Director as well as the adjudicator. This is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The board treated the appeal/petition as a de novo hearing or a rehearing. There is no room for a judicial review of the Director’s decision. I have therefore considered the grounds of this application against the decision of the TCAB only.

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

22. The supporting affirmation lists the following as grounds for seeking leave:

(1) his lack of legal representation before TCAB/miscarriage of justice;

(2) the lack of language assistance given to him/unfairness; and

(3) procedural unfairness/failure to give reason for rejecting BOR 2.

23. The first ground is a complaint by the applicant she was not provided with legal representation for her appeal/petition nor to assist her 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 her 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’.

24. 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 her 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 her appeal has not been shown to be procedurally unfair.

25. The duty lawyer scheme will continue to 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. However, this applicant admitted during the hearing that she did approach the duty lawyer scheme for continued legal assistance in her appeal but they refused her because they were of the opinion her appeal had no merit. This ground is not reasonably arguable.

26. The applicant’s second ground is also without merit. In it, she complains the duty lawyer service is saving costs and refused to translate her non-refoulement claim form despite her request for it. Without it she cannot confirm whether or not the basis of her claim written in English is accurate and that was the purpose of her request. However, during the assessment process, interviews and appeal, there does not seem to have been any reason to suspect her claim, particularly her non-refoulement claim form, had not been translated properly. If there had, the applicant would have been able to particularise it here in this ground.

27. Within that second ground, it states the Immigration Department invited the applicant to provide additional facts/information in a letter which was too technical for her to understand. She complained that no supplementary screening interview was arranged by the Immigration Department. However, during the oral hearing she told this court that she had no information at that time to give the Director. In any event, this was not part of her appeal to the TCAB. There is nothing reasonably arguable in this ground.

28. Ground 3 is a criticism of the Director failing to provide an explanation for rejecting the BOR 2 risk claim. As I have said this application for leave does not extend to the Director. This ground should have been a ground of appeal put before the TCAB.

Conclusion

29. I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave is refused.”

8.  In the notice of appeal filed on 9 March 2018, the applicant advanced the following grounds of appeal:

(a)  the deputy judge erred in ruling that there was no evidence of procedural unfairness, when the applicant was not provided with legal representation for her appeal to the board and for her claim in respect of the BOR 2 risk before the director;

(b)  the Duty Lawyer Service should have provided legal representation to her for her BOR 2 claim; and

(c)  the deputy judge erred in ruling that there was no room for judicial review of the director’s BOR 2 decision.

9.  By a letter dated 9 March 2018, the applicant agreed that this appeal be heard by a two-judge court.

10.  Following directions given by the Registrar of Civil Appeals, the applicant lodged her skeleton argument on 31 May 2018.  The applicant clarified in paragraph 11 of her skeleton argument that she would not argue she was entitled to legal representation at all stages of the process.  She argued instead that she should be given legal representation for the claim before the director in respect of her BOR 2 risk.

11.  We heard the appeal on 20 June 2018.

12.  The applicant is right to say that a non-refoulement claimant is not entitled to free legal representation at all stages of the process.  Indeed, this is what we have said many times before: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37. 

13.  As regards legal representation for her claim in respect of the BOR 2 risk, there is no evidence before us that the Duty Lawyer Scheme refused to render assistance to the applicant when she approached them.  There is no evidential basis for us to accept the applicant’s bare assertion that the Duty Lawyer Scheme does not cover the director’s assessment of her BOR 2 risk. 

14.  We also note that after the director invited the applicant to submit additional information in support of her BOR 2 claim, the applicant did respond to the request by submitting such information.  Having taken into account the additional information provided, the director took the view that the information could not substantiate any grounds for non-refoulement protection, particularly the ground based on the BOR 2 risk.  In such circumstances, the director was perfectly entitled to proceed with the assessment of the applicant’s BOR 2 risk on the basis of the primary material relating to the other grounds (prepared by her legal representative).  As was mentioned in paragraph 25 of the CALL-1 form, the applicant also approached the Duty Lawyer Scheme for continued legal assistance in her appeal before the board but they refused her request on merits.  We do not see any reasonably arguable basis to challenge the fairness of the process.

15.  On the facts of this case, we cannot see any additional basis for advancing a case on the BOR 2 risk independent of the BOR 3 risk, the persecution risk, and the torture risk.

16.  We do not find any merits in the challenge based on the lack of language assistance.  We note in paragraph 35 of the board’s decision that, during the oral hearing, the board had made special efforts to ensure that the material was accurately translated.  The deputy judge rightly observed that the applicant provided no particulars about any mis-translation of her material.  We also note that all court documents were written in English, which indicates either that the applicant is familiar with the English language or that she has access to, or is able to seek, such language assistance as she may need.  The affirmation she made (which was written in English) did not contain an interpretation clause, which suggests that she can understand the England language without interpretation.  In these circumstances, we do not accept the contention that the lack of language assistance has in any way jeopardized her rights in this case.

17.  Nor do we see find any merits in the challenge based on the absence of reason for the director’s rejection of her BOR 2 claim.  As held by the Court of Final Appeal, the high standards of fairness do not require the reasons to be elaborate, although the reasons must be sufficient to enable the potential deportee to consider the possibility of administrative review and judicial review: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 51.  The director’s further decision on the BOR 2 risk should not be considered in isolation.  It should be read together with his earlier decision involving the same primary material even though different risks.  When that is done, the reasons for the director’s rejection of the BOR 2 claim are clear.  In those circumstances, even if we are prepared to proceed on the basis (without deciding) that the deputy judge has over-stated the position by saying that there is no room to challenge by way of judicial review the director’s decision (but only that of the board’s), the applicant’s intended challenge against the director’s decision is in any event not reasonably arguable.  There is no reason for us to say that the high standards of fairness as laid down by case law have not been met in this case.

18.  Having considered the applicant’s skeleton argument as well as the material before us, we agree with the deputy judge’s decision.  We cannot see any errors of law or procedure in the proceedings before the director and the board.  Nor is there any reasonably arguable basis to challenge the fairness of the process. Determination of the merits of the non-refoulement claim is a matter for the director and the board, not the court.  We agree with the deputy judge that leave to apply for judicial review should be refused.

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