RE GURWINDER SINGH

CACV 537/2019

[2020] HKCA 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 537 OF 2019

(ON APPEAL FROM HCAL NO 2933 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving the judgment of the Court):

The appeal

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung[1] refusing to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

Background

2.  The applicant is a national of India.  He arrived in Hong Kong illegally on 14 May 2015 and surrendered himself to the Immigration Department on 20 May 2015.  He then raised a non-refoulement claim on the basis that he would be harmed or killed by his paternal uncle because of political and land disputes he had with his uncle.

3.  The details of the applicant’s claim have been summarized by the Judge at [4] of the CALL-1 Form and [5] – [23] of the Board’s decision.  In brief, the applicant and his family were supporters of the Congress Party but his paternal uncle, who was head of the village, put pressure on them to support the Akali Dal Party instead.  His uncle also tried to seize the land that the applicant’s father had inherited.  The applicant complained that as a result he was beaten up by a group of men in October or November 2014.

The Director’s Decision   

4.  The Director of Immigration decided against the applicant’s claim on 18 August 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (“BOR 3” and “BOR 2”), as well as his other statutory and convention rights against torture and persecution.

The Board’s Decision

5.  The applicant appealed against the Director’s decision to the Board.  After a hearing held on 18 May 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 14 December 2018.

6.  The Board proceeded on the basis of the applicant’s factual allegations, but held that although the uncle might have had influence before, by the time of the Board hearing the Congress Party had won the elections in 2017 and had become the ruling party in the applicant’s province.  Whatever political influence the uncle had had at the local level had been lost, and there was nothing to show that he had any influence beyond his locality.  The political situation was then in the applicant’s favour.

7.  The Board considered that COI showed that reasonable state protection was available in India and that there were various avenues of complaints available to the applicant with regard to alleged police inaction.

8.  The Board rejected the applicant’s case based on a lack of grounds under all four heads of risk: torture risk, persecution risk, BOR 2 and BOR 3 risk. The Board considered that for the applicant, who was a 27-year-old healthy man with 14 years of education in India and training in mechanical engineering and business experience, internal relocation was possible.  There was no evidence of state acquiescence when the political scene was in the applicant’s favour.  The facts alleged did not support any risks of torture, or arbitrary deprivation of life, or cruel and inhuman treatment, or persecution on the relevant grounds.

Decision of the Judge

9.  For his application for leave to apply for judicial review, the applicant raised a number of complaints in his affirmation dated 20 December 2018, including:

(1)  The Director’s and the Board’s decisions were unfair.

(2)  He was not provided with language assistance before the Board.

(3)  He was not provided legal assistance for his appeal before the Board.

(4)  The Board did not look at his case afresh as she found that the Congress Party had won the elections and the applicant’s uncle’s political influence would have waned.

(5)  The Immigration Department rejected his claim using a uniform approach simply for the sake of rejecting all non-refoulement claims.

(6)  The Board did not address the applicant’s complaints against the Director and made the assessment on a templated basis.

(7)  He was not provided with translation service whilst other claimants were so provided.  There was no translation of the Board’s decision provided to him. 

(8)  The Board’s analysis of relocation was seriously flawed as, among other things, his enemies could easily locate him in India and hire someone to kill him.

10.  The Judge held that the applicant did not have an absolute right to legal representation at every stage of the proceedings as he had already had legal representation at the screening stage: Re Ahmed Syed Rafiq [2018] HKCA 178, §22.  The applicant confirmed that his lawyer had explained the Director’s Decision to him and his friend had explained the Board’s Decision to him.  The Judge also put the Board’s findings and comment to the applicant and asked for his comments but he had none.  In conclusion, the Judge found that Grounds (1), (4), (5) and (6) were the applicant’s opinions without any evidence in support.  Ground (2) was inconsistent with what the applicant said before the court.  Ground (3) failed because of the Court of Appeal’s decision in Re Ahmed Syed Rafiq.  Ground (7) failed as there was no evidence of what happened in other claimants’ cases.  As to Ground (8), the Judge noted there was no complaint that the Board failed to take into account the factors submitted by the applicant and that the high standard of banners applicable did not require the Board to investigate in a vacuum. Accordingly, the Judge found that the proposed application for judicial review did not have a reasonable chance of success.

The appeal

11.  In his Notice of Appeal dated 22 November 2019, the applicant put forward the following grounds of appeal:

(1)  The court and authorities did not exercise caution and diligence in handling his case as a self-represented litigant and it has been procedurally unfair.

(2)  The Judge failed to acknowledge the applicant’s language difficulties.           The applicant did not fully understand the Board’s Decision.

(3)  The Director and the Board used a formulaic approach to deal with COI and did not provide any concrete evidence.

(4)  The fact that there are no other avenues for an applicant to appeal against a decision made purely against credibility is procedurally unfair.

(5)  He could not elaborate upon the grounds in his affirmation because he was detained in the CIC[2] and did not have legal advice.  It was unfair that the court did not hold a hearing to take evidence from him.

(6)  It was uncertain how the Director would have come to the conclusion that state protection was available to the applicant, if he had highlighted those parts of the COI that concerned the ineffectiveness, inefficiency and even corruption on the part of the police in India.

(7)  The Judge failed to take into account the applicant’s Grounds (1), (2) and (5), which were not his own opinions but facts.

(8)  The Judge erred in respect of Ground (7) as it is a fact that many other applicants were provided with translation service through the pilot scheme and the Judge could have verified that fact.

12.  In his written submissions to this court dated 14 April 2020, the applicant states that the Judge failed to see that the requisite high standard of fairness had not been maintained, and that he seeks a reconsideration of his case based on unfairness and unreasonableness.  He says it is not true that he could understand the Board’s decision after it was explained to him by his friend as he was not able to understand legal jargon without legal representation.  He says he could read the Board’s Decision but that does not mean he could understand it, and the Judge failed to exercise a duty of care towards the applicant as an unrepresented litigant who did not fully understand English.  He says for this reason his case should be remitted to the lower court, and he should be given an opportunity to provide further grounds (if any) upon having the documents read back to him after a reasonable time.

13.  The approach of this Court in dealing with cases of this nature is well established:

(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.  Although 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 the evidence and COI materials and risk of harm, state protection and viability of internal relocation are matters 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 or procedural unfairness or irrationality in their decisions.

(2)  An appeal against the refusal of leave by a judge of the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if the appellant can demonstrate that the judge has made errors of law or failed to take account of relevant matters already placed before the Court or has taken into account irrelevant matters or his decision is otherwise plainly wrong.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the decision below, 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 the appeal were a fresh application for leave to apply for judicial review.

14.  In our view there are no merits in the applicant’s appeal. 

15.  It is not for the Judge to take a “first step” approach to investigate if the applicant had been given language assistance. The burden of proof falls squarely on the applicant to make his case of non-refoulement: AM v Director of Immigration [2014] 1 HKC 416 at 427.  The applicant had legal representation for the Director, and interpretation service at all hearings below.  High standards of fairness do not mean that the applicant was entitled to legal representation at all stages of the proceedings, or that an interpretation service has to be made available at any time as the applicant desired.  It is further noted that the applicant’s documents are all written in English, indicating either that the applicant is familiar with English or he had the means and acess to such language assistance as he needed.  Further, as the Judge noted in his reasons, the Judge himself drew the applicant’s attention to the Board’s findings and comments, but the applicant said he had no comment.  Nor has the applicant specified what specific “legal jargon” in the Board’s Decision he failed to understand.  Grounds (2), (3) and (7) advanced before the Judge do not therefore assist the applicant.

16.  The applicant’s assertions in Grounds (1), (4), (5) and (6) before the Judge were broad and vague, amounting to bare statements without particulars nor evidence in support.  There is no error in the Judge’s dismissal of these grounds.

17.  As for Ground (8) advanced before the Judge, the assessment of COI and the reasonable possibility of internal relocation are matters for the Board.  We see no error in the Judge’s decision that the applicant’s attack on the Board’s Decision in this regard had no substance. 

18.  The suggestion that the Board’s Decision against the applicant was made purely based on credibility is baseless.  The Board did not reject the applicant’s claimed version of events, but found that they did not give rise to the relevant risks and, coupled with the possibility of internal relocation, were not sufficient to justify the applicant’s claim for non-refoulement protection.  At the end of the day, this is a decision that the applicant has been unable to show any valid ground to impugn.

19.  Accordingly the applicant’s appeal is dismissed.