RE PREETY PAL SINGH (alias PRETTY PAL SINGH)

CACV 171/2019

[2019] HKCA 1152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 171 OF 2019

(ON APPEAL FROM HCAL 907 OF 2018)

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J U D G M E N T

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Hon Wong J (giving the judgment of the court):

The Appeal

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 4 April 2019 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (“the Board”) dated 8 May 2018 dismissing the applicant’s appeal against the two decisions of the Director of Immigration (“the Director”) dated 5 June 2015 and 19 June 2017 rejecting his non-refoulement claim.

The applicant’s non-refoulement claim

2.  The applicant is an Indian national, 27 years of age.  He arrived in Hong Kong on 19 March 2015 and when he was refused permission to land, he raised a non-refoulement claim.

3.  The applicant’s background and the details of his claim were set out in full in paragraphs 6 and 7 of the Director’s Notice of Decision dated 5 June 2015 and paragraphs 1 ‑ 3 of the Board’s decision dated 8 May 2018, and were summarized in paragraphs 1 ‑ 13 by the Judge in the Form CALL-1 dated 4 April 2019.

4.  Briefly stated, the applicant’s claim was based on his fear that, if he were to return to India, he would be harmed or killed by a person named Parminder Singh (“PS”) because he was a supporter of the Akali Dal Party (“ADL”) which was a rival to the Congress Party which PS supported, and also he had accidentally knocked down PS in a car accident causing him injury.

The decisions of the Director / the Board

5.  The applicant’s non-refoulement claim was assessed by the Director under the Unified Screening Mechanism (“USM”).  Initially, having considered and assessed the torture risk[1], BOR 3 risk[2], and persecution risk[3], by a Notice of Decision dated 5 June 2015 the Director rejected the applicant’s claim.  Subsequently, the applicant was invited to provide additional facts if any which he considered to be relevant to his non-refoulement claim on all applicable grounds including that related to the BOR 2 risk[4].  The applicant did not provide any further information.  In the circumstances, by a Notice of Further Decision dated 19 June 2017, the Director informed the applicant that the decision dated 5 June 2015 would not be affected, and that in the absence of additional information it was considered that he had failed to establish the right under BOR 2.  The applicant appealed to the Board and a hearing was held on 15 February 2018.  By its decision dated 8 May 2018, the Board dismissed the appeal and affirmed the Director’s decisions.

The decision of the Judge

6.  The applicant filed a Form 86 and a supporting affirmation on 23 May 2018 seeking leave to judicially review the Board’s decision based on the following matters:

(1)  He had no legal representation after the Director’s first decision dated 5 June 2015 as, he said, the Duty Lawyer Service discontinued the representation on the basis that there are no merits for appeal.

(2)  There was no translation of the Director’s letter inviting him to submit additional information for the consideration of BOR 2 risk.

(3)  The Director should have but failed to refer his case back to the Duty Lawyer Service in relation to BOR 2 risk.

(4)  The appeal he had lodged with the Board was only against the Director’s decision dated 5 June 2015 rejecting his non‑refoulement claim on the grounds of torture risk, BOR 3 risk and persecution risk, hence it was wrong for the Board to include the BOR 2 risk ground in its decision.

7.  At the applicant’s request, an oral hearing was conducted on 24 August 2018 to hear his leave application.  The Applicant confirmed to the Judge that he had submitted his full case to the Director and the Board for consideration of his non-refoulement claim, that all the grounds of judicial review were in the documents before the Judge, and that he had nothing to add.[5]

8.  The Judge, having heard the applicant in Court and having considered the relevant documents, decided that there was no prospect of success in the applicant’s intended judicial review and refused to grant him leave to apply for judicial review.  The Judge set out his reasons in paragraphs 32 ‑ 41 of the Form CALL-1 dated 4 April 2019[6]:

“32. The Applicant raised his language problem. He complained there was no translation of the Director’s letter inviting him to submit additional information for the consideration of BOR 2 risk.

33. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated his language problem.

34. The Applicant said the Director should refer his case back to the Duty Lawyer Service in relation to BOR2 risk. The Applicant had been represented by the Duty Lawyer Service up to the Director’s decision dated 5 June 2015. There was no evidence he reapplied for legal assistance from the Duty Lawyer Service afterwards.

35. The Applicant could not sit back and expect the Director to refer his case to the Duty Lawyer Service again for legal representation. He did not respond to the Director’s request for further information for the consideration of BOR2 risk. The Director could not be expected to request the Duty Lawyer Service to act for the Applicant in such circumstance.

36. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

37. The Applicant further said he only lodged his appeal against the Director’s decision dated 5 June 2015. The Director’s decision on BOR2 risk only came out on 19 June 2017. He had not filed any grounds of appeal in relation to BOR2 risk. It was thus irregular for the Adjudicator to include BOR2 risk in his appeal decision.

38. The Director in paragraph 8 of his further decision dated 19 June 2017 clearly told the Applicant that as his appeal (against the Director’s decision dated 5 June 2015) was still pending determination, the Adjudicator would determine his appeal on all applicable grounds in one go and there was no need for the Applicant to file separate further petition to the Board.

39. The Adjudicator could and should consider the Applicant’s claim with respect to all the four applicable grounds including BOR2 risk. The Applicant’s complaint was frivolous.

40. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

41.  The Applicant’s complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

Grounds of appeal

9.  The applicant filed a Notice of Appeal dated 10 April 2019 to appeal the Judge’s decision.  He did not put forward any grounds of appeal other than stating that he is not satisfied with the decision, and reiterating his claim that his life would not be safe in India and he wants to stay in Hong Kong.

10.  In his written submission dated 2 July 2019, the applicant submitted that he is not satisfied with the Board’s decision, complaining that the decision was not fair and transparent, and facts relating to his case were ignored.  He stressed there was COI showing many people are facing death threat and torture in his country and that as he does not have enough sources to protect himself, his enemies would torture or kill him if he were to return.

Discussion

11.  We heard the appeal on 14 October 2019.  At the hearing, the applicant confirmed he had included everything in support of his appeal in the papers and he has nothing to add.

12.  This Court has repeatedly emphasised that judicial review does not operate as a rehearing of the non-refoulement claim. Evaluation of the claim and evidence and assessment of its merits is a matter for the Director and the Board, who are the primary decision makers.  The Court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  It does not provide a further avenue of appeal.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  The court will not interfere with the findings of the Board unless they are reversible on public law grounds.

13.  An appeal against the refusal of leave to judicial review by a judge in 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 his decision would not be reversed unless the applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  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.[7]

14.  What the applicant said in Notice of Appeal are all matters raised before the Judge and have been carefully considered by him.  The applicant cannot point to any fault of the consideration and the decision of the Judge, nor do we find any.

15.  We also do not agree with the criticism against the decision of the Board as stated in the applicant’s written submission[8].  The applicant failed to advance any public law grounds based on which we may find any interference of the finding of facts is justified.  The issue relating to COI, which is another matter stated in the written submission, was not raised during the application for leave to apply for judicial review.  This point is misplaced and has no relevance in this appeal.

16.  We agree with the Judge’s observations that the applicant’s case is not reasonably arguable, there is no realistic prospect of success and leave to apply for judicial review should not be granted.  We cannot discern any error in the decision made by the Judge.

Disposition

17.  For the reasons we have given above, we conclude that there is no merit in the appeal.  Accordingly, we dismiss the appeal.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, Laws of Hong Kong.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights, Hong Kong Bill of Rigts Ordinance (“BOR Ordinance), Cap 383, Laws of Hong Kong.

[3] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of violation of the right of life under Article 2 of the Hong Kong Bill of Rights, BOR Ordinance, Cap. 383, Laws of Hong Kong.

[5] See paragraphs 27 ‑ 29 in the Observations for the Applicant in the Form CALL-1.

[6] [2019] HKCFI 873

[7] Re: Salwant Singh, CACV 164/2019, paragraph 14(3).

[8] See paragraph 10 above.