RE KHAN MD OMAR

CACV 155/2019

[2019] HKCA 803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 155 OF 2019

(ON APPEAL FROM HCAL 1649/2018)

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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 15 March 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of India.  He arrived in Hong Kong on 20 April 2007 and was permitted to remain as a visitor for 14 days.  He overstayed since 5 May 2007 after the expiry of that permission.  He was arrested by the police on 26 December 2007. He lodged a claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT claim”) on 2 January 2008.  His CAT claim was treated as a non-refoulement claim to be assessed under all applicable grounds upon the commencement of the unified screening mechanism in March 2014.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed, or even be killed, by a person known as Sabba because of a dispute between them over the use of a community club.  The facts of this case were briefly summarized by the judge at [4] of the Form CALL-1 ([2019] HKCFI 625).

4.  By a notice of decision dated 19 January 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 11 June 2018, and mindful of the lack of interview before the Immigration Officer and the statements of the applicant were brief and lacking in details, the Board tested the evidence of the applicant at the hearing[5]. The Board dismissed the appeal/petition on 7 August 2018.  In its decision, the Board found the applicant’s assertions vague and he could not even provide basic information about the core elements of his claim.  The information provided by the applicant in his Non-refoulement Claim Form was also inconsistent with his evidence given at the oral hearing.[6] The applicant failed to provide any documents or witness statements corroborating his assertions apart from country background information of a generic nature.  The Board found the applicant’s account not credible and rejected his claim accordingly. 

The judge’s decision

6.  The applicant filed his Form 86 on 16 August 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions.  He set out the grounds for seeking relief in his affirmation filed on the same day in support of the application. The grounds set out therein concerned the lack of language assistance, the lack of legal assistance, and the Director’s assessment of the country of origins information (“COI”).

7.  An oral hearing was held by the Judge on 11 January 2019.  At the hearing, the applicant complaint that the Director refused to adjourn the screening interview after he failed to attend it due to illness.  We note that the Director considered it appropriate to proceed with assessing the applicant’s case based on the written materials prepared by his lawyer without a screening interview: see [9] of the Director’s decision. 

8.  The judge summarized the applicant’s grounds for seeking relief in [11] of the Form CALL-1 as follows:

(a)   he was sick for the interview for the screening and his lawyer had requested another interview but was rejected;

(b)   the Immigration officer should not assess his claim without a screening;

(c)   there was no language assistance to him for the appeal;

(d)   he had no legal representation for the appeal;

(e)   the Hearing Bundle was not read to him and there was no translation for it;

(f)   the Director cherry picked the COI to rebut his claim and adopted a biased and formulaic approach in coming to state protection being available to him;

(g)   the Board’s Decision was not read or translated to him; and

(h)   he did not understand the contents of the Board’s Decision.

9.  After hearing the applicant, the judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [12] – [23] of the Form CALL-1 as follows:

“ 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 considered his appeal and made its Decision.

13. Since the applicant has not set out any exceptional circumstances, his 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. He confirmed that he considered that he had had a fair hearing before the Adjudicator. He also said that he had told the Adjudicator that he was not interviewed by the Immigration officer.

16. Therefore, the procedural irregularity for the screening had been addressed by the Adjudicator as the Adjudicator had the power to hear the applicant afresh. See Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-Refoulement Claims Petition Office and Director of Immigration [2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018, §19. Grounds (1) and (2) fail.

17. Ground (3) does not stand because it is for the applicant to seek assistance for his language problem. He may seek assistance from the District Office, Resource Centre of the High Court, the Legal Aid Department, the Immigration Department or even the Board. He had not even tried any of these sources. He has no ground to complain.

18. 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.” Ground (4) fails.

19. Ground (5) is a non-point as he said in court that he had no difficulty with the Adjudicator and he thought he had a fair hearing himself.

20. Ground (6) fails because it is the Director and the Adjudicator’s discretion as to what evidence should be given weight. There is no evidence of any formula for their exercise of discretion.

21. Grounds (7) and (8) will not assist the applicant as he had already raised the application for judicial review. He reserved right to make further submissions to me in his affirmation. But he had made no further submission in the hearing.

22. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

Conclusion

23. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”

The appeal

10.  On 28 March 2019, the applicant filed a notice of appeal.  In it, the applicant advanced numerous grounds of appeal which in essence consist of the following:

(a)   The judge’s failure to acknowledge the unfairness in the lack of language assistance;

(b)   The Board erred in dismissing his claim based on credibility;

(c)   The Director failed to highlight COI materials that were in the applicant’s favour.

11.  The applicant lodged his written submission on 14 June 2019.  The applicant submitted therein that:

(a)   The judge failed to consider the irregularity arising from his claim being assessed by the Director without a screening interview;

(b)   The judge failed to consider the significance and level of unfairness in respect of the lack of language assistance;

(c)   The Board should treat the appeal/petition as a rehearing and should make findings independent of the Director’s findings; and

(d)   The judge was wrong in suggesting that the applicant did not try to seek language assistance from the resource centre of the High Court.

12.  By a letter dated 28 March 2019, the applicant gave consent to the appeal being heard by a 2-member court.

13.  We heard the appeal on 15 July 2019.

General principles

14.  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 judge or was otherwise plainly wrong.

(3)   It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave to apply for judicial review has not been sought within time.

(4)   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

15.  As this Court (differently constituted) have explained in Re Moshsin Ali [2018] HKCA 549 at [31] – [45], the Director’s decision is not susceptible to judicial review once an appeal to the Board is pursued by a claimant.  Accordingly, the applicant’s grounds of appeal relating to the Director’s decision are rejected.  In this respect, we agree with the judge’s approach at [12] to [14] of the Form CALL-1.

16.  The grounds relating to the lack of language assistance are basically regurgitation of the arguments advanced before the judge and rejected by him. 

17.  Those grounds have no merit.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: see Re Gurnishan Singh [2018] HKCA 704; and Re Gurung Sagar [2019] HKCA 658. 

18.  In the present case, all the 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 himself conversant with the English language or he has access to language assistance of his own if he deemed necessary. Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.

19.  We would however respectfully disagree with the Judge’s suggestion that the applicant could have sought language assistance from the District Office, Resource Centre of the High Court, the Legal Aid Department, the Immigration Department or the Board. Other than interpretation services at the hearings or in the course of legal aid assistance, we are not aware of the availability of such services for a person like the applicant.  

20.  The applicant has not relied on any grounds regarding the Board’s assessment of his credibility before the judge.  As explained above, this Court will not entertain any new argument that are fact-and-evidence sensitive which has not been canvassed in the Court of First Instance and for which leave to apply for judicial review had not been sought within time.

21.  In any event, such grounds are devoid of any merit.  As we have explained above, the assessment of evidence is within the sole province of the Board.  The court will not intervene by way of a judicial review unless there are errors in the public law grounds.  Having read the Board’s Decision, we consider that the Board had given cogent reasons for finding against the applicant’s credibility and rejecting his claim. 

22.  In this appeal, the applicant failed to pinpoint any viable ground that could reverse the decision of the judge. We agree with the judge that leave to apply for judicial review should be refused.

23.  For these reasons, we dismiss the appeal.