RE VIKAS

CACV 149/2018

[2018] HKCA 520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 149 OF 2018

(ON APPEAL FROM HCAL NO. 572 of 2017)

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JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 May 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 29 August 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 February 2017 rejecting his non-refoulement claim under the BOR 2 Risk[1] ground.  The applicant consents to the appeal being heard by a two-judge Court.

2.  The applicant is an Indian national.  He arrived in Hong Kong on 2 April 2011 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 22 July 2012.  On 25 July 2012, he lodged a non-refoulement claim based on his fear that, if he returned to India, he would be harmed or killed by a man called Sattu (S) and the family of Gopi (G) because he saw S kill G. 

3.  The applicant’s case is that in May 2010, he happened to pass by and saw S stab G.  He went to tell G’s parents about what he saw.  Thereafter on four occasions S and his associates threatened to kill him if he were to testify against him.  At the same time, G’s family pressurised the applicant to assist them and threatened to kill him if he refused.  The applicant therefore left his home village to stay with his relatives at different places, during which S and G’s family continued to threaten him by telephone.  After a while, the applicant returned home.  However, not long after his return, he was attacked by two to three strangers who punched him several times.  He felt pain in the stomach after the attack and received treatment from a clinic.  The applicant left home again to live with his relatives.  On 3 February 2011, he departed India for Bangkok, from where he went to Malaysia and Cambodia, before returning to Bangkok and finally coming to Hong Kong. 

4.  By a Notice of Decision dated 10 March 2015, the Director rejected the applicant’s claim having regard to the torture risk[2], the BOR 3 risk[3] and the persecution risk[4].  Primarily, the Director assessed the level of harm from S and G’s family to be low, having regard to the absence of ill-treatment and the low intensity and frequency of the claimed threat and harm.  The Director also considered that the level of risk would be lowered or negated by the availability of reasonable state protection and internal relocation options.  The Director further found the dispute with S or G’s family to be private in nature, and there was no substantial ground to believe that the threat or attack on the applicant was at the instigation of, or consented to, or acquiesced in by government or public officials.    

5.  The applicant appealed the Director’s decision to the Board.  An oral hearing was held on 11 February 2016, during which the applicant elected not to give evidence.  By its decision dated 1 December 2016, the Board dismissed the appeal.  The Board found the account given by the applicant unreliable and that he was not a genuine non-refoulement claimant. That aside, the Board was of the view that, even on the applicant’s case, his claim did not satisfy the elements required to make out a case of torture risk, BOR 3 risk or persecution risk.

6.  By letter dated 17 January 2017, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk. The applicant sent in a letter dated 27 January 2017, which mentioned that his family had reported to the police about disturbance caused by S, and that S got angry and forced his parents to disclose his whereabouts and also hurt them. 

7.  The Director assessed the BOR 2 risk ground based on the primary materials prepared for the other applicable grounds for his non-refoulement claim and also the applicant’s submission.  By a Notice of Further Decision dated 7 February 2017, the Director decided against the applicant.  The Director considered that the level of risk of harm from S and G’s family upon the applicant’s return to India was low.  The Director also took the view that the BOR 2 ground was not engaged in that the facts of the applicant’s claim clearly did not involve death and genocide, and there was no basis for a personal and real risk of being arbitrarily deprived of life.   

8.  The applicant appealed the Director’s further decision to the Board.  The Board considered there was no need to hold an oral hearing as the applicant had made further submission of materials to the Director and had also presented his case in the notice of appeal/petition.  By a decision dated 29 August 2017, the Board dismissed the appeal.  The Board referred to the reasons given in its earlier decision of 1 December 2016 and found the applicant failed to establish a case under the BOR 2 risk ground, even bearing in mind that the standard of proof was not high.       

9.  The applicant filed his Form 86 on 1 September 2017 seeking leave to apply for judicial review against the Board’s decision of 29 August 2017.  The applicant advanced the following grounds in support of the relief claimed:

(1)    The Board had unlawfully fettered its discretion by refusing his appeal on the ground that it did not satisfy the requirement.

(2)    The adjudicator acted unfairly procedurally in dealing with his appeal.

(3)    The Board’s decision in refusing his appeal was unreasonable or irrational in the public law sense resulting in procedural error or unfairness.

(4)    The Board failed to meet the greater care and duty owed to a self-represented claimant.

10.  Based on the elaborations given in the Form 86 and the applicant’s supporting affirmation, the Judge summarised the applicant’s complaints to be as follows: 

(1)   He was not given any oral hearing in his appeal before the Board and was deprived of an opportunity to put forward his oral or written submission relevant to the BOR 2 risk ground.

(2)   The Board had significantly relied on source of news not officially recognized or outdated or simply hearsay which led to its groundless speculations that it would be safe for him to return to India.

11.  The Judge refused to give leave to apply for judicial review for the reasons stated in [11] to [16] of the CALL-1 Form dated 4 May 2018:

“11. For the applicant’s complaint of not being given an oral hearing before the Board regarding his claim under BOR 2 risk, the Court of Appeal has held that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at paragraph 26.

12. It is clear that the applicant did have an oral hearing in his first appeal before the Board during which he however chose to remain silent, and while he did in response to the Director’s invitation submit additional materials and representation regarding his claim under BOR 2 risk, of which both the Director and the Board had taken into consideration and were entitled to find, as they did, that they were hearsay and did not add anything legally or substantively to what he had previously presented to them, and for which the Board did explain why an oral hearing in the circumstances was not necessary in its decision:

“7. The Appellant has been given the opportunity by the Director to provide further materials, which he has provided, and has ventilated his case in the NOA/P. Whether ‘India is the most violent country at this time’ I do not need to address as to whether it is a true or speculated or false statement to make. But his case is abundantly clear. I can see no need or justification to organize yet another oral hearing to canvas the same case as has been heard and disposed of previously. As the Court of Appeal has said, ‘the time and resources spent on these cases is immense. It is to the interest of all parties that these cases should be disposed of promptly and efficiently’: AW v Director of Immigration CACV 63/2015. The issue under BOR 2 Risk can more than adequately be considered and dealt with on paper.”

13.   Even now at the stage of his leave application for judicial review of that decision of the Board including an oral hearing before me, the applicant still did not state what further representation or submission that he would have put forward to the Board had he been given the oral hearing.  In the circumstances I do not find anything amiss arising from the Board for not providing another oral hearing to the applicant, nor do I find any procedural unfairness to him as a result.

14.   As for his complaint of the Board using unreliable or outdated or hearsay information in assessing that it would be safe for him to return to India, the applicant again has failed to provide any particulars or specifics, and upon examining those COI listed and referred to by both the Director and the Board in their consideration of the applicant’s claim, I do not see any basis for him to make such an assertion, nor do I find any merit in this complaint of his.

15.   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.

16.   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.”

12.  In the Notice of Appeal dated 9 May 2018, the applicant reiterated his complaint about not being given an oral hearing before the Board on his appeal against the BOR 2 risk determination.  It was said that the failure to hold an oral hearing amounted to procedural unfairness.  The applicant accepted the legal principles stated in ST v. Betty Kwan [2014] 4 HKLRD 277 at [26], but argued that when he provided the further representation and materials to the Director, he did not have legal representation or language assistance. With limited resources, he could not provide all the information and it would be easier and fairer for him to express himself in person.  In his written submission, the applicant further stated that as the hearing before the Board was a rehearing, the Board should not just act on materials provided to the Director but should have regard to evidence that would be put before it, including oral evidence.     

13.  As the applicant accepts, there is no absolute right to an oral hearing.  The Judge had in his reasons correctly set out the considerations relevant to a decision whether to hold an oral hearing.  In considering the applicant’s complaint about being deprived of an oral hearing, the Judge had regard to the fact that an oral hearing was held for the first appeal to the Board, at which the applicant elected to remain silent, that the applicant had availed himself of the opportunity to provide further materials on BOR 2 assessment to the Director, the reasons given by the Board for deciding not to hold an oral hearing, as well as the fact that the applicant had not stated what further information he would have put before the Board at an oral hearing.  We cannot discern any error in the Judge’s approach or reasoning.  

14.  The thrust of the applicant’s argument on appeal is that because he did not have legal and language assistance, he should be allowed the opportunity to make oral representation at an oral hearing.  We cannot agree. As the Judge observed, the applicant has not been able to identify the further materials or representations he would have put before he Board at an oral hearing to advance his case under the BOR 2 risk ground.  This being the case, no useful purpose would be served by an oral hearing.  There is also no basis to support the complaint of procedural unfairness.

15.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.