RE SHARMA POONAM

CACV 114/2019

[2019] HKCA 804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 114 OF 2019

(ON APPEAL FROM HCAL 747/2018)

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JUDGMENT

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Hon Lam Acting CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung on 25 February 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of India.  She first arrived in Hong Kong as a domestic helper in 2012 and returned to India upon a premature termination of her employment contract in May 2015.  She subsequently arrived in Hong Kong on 1 September 2015 and was permitted to remain as a visitor for 14 days.  She did not depart upon the expiry of her permission to remain. Instead she overstayed in Hong Kong since 16 September 2015.  She surrendered to the Immigration Department on 19 October 2015.  She lodged a claim for non-refoulement protection on 30 May 2016.

3.  The applicant’s claim was based on the fear that, if refouled, she would be harmed, or even be killed, by her mother-in-law because of a domestic dispute between the two. The brief facts of this case were set out by the judge in [4] of the Form CALL-1 ([2019] HKCFI 404).

4.  By a notice of decision dated 19 July 2017, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4].

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 15 February 2018.  After hearing the applicant, the Board dismissed the appeal/petition on 16 April 2018.  In its decision, the Board found that though the applicant’s evidence was largely consistent and plausible, there was no evidence that the applicant would be at any real risk of serious harm from her mother-in-law.  The Board also found material discrepancy between the statement in the Non-refoulement Claim Form and her evidence given at the hearing with regards to her alleged report to the police.  Upon reviewing the relevant country of origin information (“COI”), the Board found that state protection was available to her.   

The judge’s decision

6.  The applicant filed her Form 86 on 30 April 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions.  She set out the grounds for seeking relief in her affirmation filed on the same day in support of the application. The grounds were summarized by the judge at [11] of the Form CALL-1.  Briefly stated, grounds (1) and (2) related to the lack of legal representation, ground (3) the lack of language assistance, and ground (4) concerned the Director’s assessment of the COI materials.

7.  Upon the request of the applicant, an oral hearing was held by the judge on 2 January 2019. 

8.  As mentioned earlier, the judge refused to grant leave for the applicant to apply for judicial review.  His reasons for refusing leave were set out at [12] – [19] of the Form CALL-1:

“ The Director’s Decision

12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had heard her appeal and made its Decision.

13. Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

14. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15. The applicant appeared before me. She confirmed that she could read the Director’s Decision and the Board’s Decision herself. She admitted that the complaint that there was no translation of the Board’s Decision was wrongly put in her affirmation. She had no complaint against the Immigration officer or the Adjudicator. Grounds (1) and (3) fail.

16. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Grounds (2) fails.

17. Ground (4) also fails because the Adjudicator had set out his reasoning in the Board’s Decision. See §§72-74. This is also the finding of the facts by the Adjudicator, which the court should not disturb. See Ali Haider CACV 8/2018, [2018] HKCA 222 §§13 & 14.

18. I find that the applicant is unable to show that there is a reasonable chance of success in the proposed judicial review.

Conclusion

19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her heave for the judicial review. Accordingly, I dismiss her application.”

The appeal

9.  On 11 March 2019, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

“ 1. It is true that I could read the Decision but it did not mean that I could understand it. My English capability has been overrated and it is unfair to me because without understanding it to its fullest I cannot lodge proper appeal.

2. I only understand the facts of the case because they were my case and also the fact that it was refused, but I could not understand the reasons why, including the tests and also the Country of Origin information.

3. I stand by what I said about the balancing exercise issue. There is no reasoning in explaining why COIs in support of my assertion are completely thrown out.

4. I hereby request for the translation and language assistance required for the better understanding of my case as this is one of the primarily rights of a litigant. I also request for an oral hearing with an interpreter arranged.” (sic)

10.  The applicant lodged her written submission on 14 June 2019.  In addition to repeating what was stated in the notice of appeal, the applicant asserted that the lack of language assistance in enabling her to understand her claim to its fullest was discriminatory and should be deemed unlawful. 

11.  By a letter dated 11 March 2019, the applicant gave consent to this appeal being heard by a 2-member court.

12.  We heard the appeal on 15 July 2019.

General principles

13.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for 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 issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the 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 an appellant 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.

(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 this Court 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 stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

14.  In the present case, the Board rejected the applicant’s claim based on its finding that she would not face a real risk of harm if refouled and that state protection was available to her.  As explained above, assessments of risk and state protection are within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on the public law grounds.  Having reviewed the materials available before the court, the judge found no reasonable prospect of success in any challenge to the findings of the Board in the intended judicial review.

15.  The grounds of appeal focused on lack of language assistance.

16.  It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658. 

17.  In the present case, all court documents, including the affirmation filed in support of the leave application, the notice of appeal, and the written submission in support of this appeal, were written in English.  Either the applicant is conversant in the English language or she has access to language assistance as she deemed necessary. 

18.  Interpretation services were available at hearings at every stage and in the course of the preparation of her case with the assistance of Duty Lawyer.

19.  We do not accept that the applicant’s language ability was overrated by the judge. Nor do we accept that the alleged lack of language assistance would render the process unfair or discriminatory in the present case.

20.  The ground relating to the Board’s assessment of the relevant COI materials do not have any merit.  The Board did give reasons for its assessment of the COI materials: see [72] – [74] of the Board’s decision.  We do not find anything amiss in the analysis by the Board.  On the facts of this case and the findings of the Board on the lack of police report, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

21.  We agree with the judge that leave to apply for judicial review should be refused.

22.  For these reasons, we dismiss the appeal.