RE SHREES KUMAR

CACV 332/2018

[2018] HKCA 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 332 OF 2018

(ON APPEAL FROM HCAL NO. 684 of 2017)

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REASONS FOR JUDGMENT

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 12 July 2018 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 26 April 2017 rejecting his non-refoulement claim on the BOR 2 risk[1] ground, and the decision of the Torture Claims Appeal Board (“the Board”) dated 25 August 2017 dismissing, without a hearing, the applicant’s appeal against the Director’s decision.

2.  The appeal was listed for hearing on 14 December 2018.  The applicant was absent.  Having considered the papers and written submission put in by the applicant, we had dismissed the appeal.  Our reasons appear below.

3.  The applicant is a Nepalese national.  He entered Hong Kong on 24 September 2013 and was permitted to remain as a visitor until 29 September 2013.  He overstayed and was arrested by the police on 15 October 2013.  He raised a non-refoulement claim on 17 October 2013 based on his fear of being harmed by the supporters of the Communist Party of Nepal-Maoist (“CPN-M”) because of his political affiliation with the Unified Marxist Leninist (“UML”).

4.  The basis of the applicant’s claim was detailed in [5] and [6] of the Director’s Decision dated 4 June 2015 that covered the torture risk[2], the BOR 3 risk[3] and the persecution risk[4].  In gist, the applicant said he was a member of UML, and had since 2005 been targeted by supporters of the opposing party, CPN-M.  He referred to four incidents that took place in 2005, 2006 and 2012, when the CPN-M supporters used threats to extort money from him for the purpose of financing the activities of CPN-M.  After the fourth incident, the applicant went to Kathmandu to avoid them, and later came to Hong Kong to seek protection as a refugee.     

5.  The applicant’s appeal against the Director’s 4 June 2015 decision was dismissed by the Board on 1 March 2017 after an oral hearing.    

6.  By letter dated 3 April 2017, the Director invited the applicant to provide additional information that may be relevant to a BOR 2 risk assessment. In response, the applicant wrote a letter dated 12 April 2017 to the Director in which he repeated the facts of his claim.  Having considered the letter and the facts of the claim, the Director, by its decision dated 26 April 2017, determined against the applicant.

7.  On 10 May 2017, the applicant appealed the Director’s further decision to the Board.  He mentioned in his notice of appeal that he had been in contact with his wife and was told that the supporters of the CPN-M were still after him.  The Board considered that an oral hearing was not required given that the applicant’s case remained the same and the BOR 2 risk assessment could be appropriately dealt with on paper.  Having considered the relevant principles and the applicant’s case, including his letter of 12 April 2017 to the Director, the Board was not satisfied that the applicant had established a case under the BOR 2 risk ground.  By its decision dated 25 August 2017, the Board dismissed the appeal. 

8.  The applicant filed a Form 86 and a supporting affirmation on 26 September 2017 seeking leave to apply for judicial review of the decisions of the Director and of the Board concerning the BOR 2 assessment.  He raised the following grounds in support of the relief claimed:

(1)  Lack of legal representation in the appeal process.

(2)  Lack of language assistance in that he should be given an interpreter so that he could better explain his case in person during the process.

(3)  Wrongful exercise of case management power by the Board in not granting an oral hearing of his appeal.

9.  At the applicant’s request, an oral hearing was held on 23 February 2018 to hear his leave application.  The Judge was of the view that the intended judicial review had no prospect of success, and refused to grant him leave to apply for judicial review.  The Judge set out her reasons in [10] to [14] of the Form CALL-1 dated 12 July 2018, [2018] HKCFI 1517 as follows:

10.  The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor his BOR 2 risk claim.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed his claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

11.  It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

12.  The applicant’s second ground is also without merit.  In it, he says he could do no more than repeat the facts of his claim instead of providing new facts to support his BOR 2 risk which makes no sense.  That and this application/affirmation seems to support the fact he is proficient in English or has help therefore if he had new facts he could have provided them to the Director and the TCAB.

13.  The applicant’s third ground is also without merit.  Although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  When the Director and the adjudicator dealt with the torture, BOR 3 and persecution risk claims there were oral hearings and the applicant was legally represented before the Director.  With the BOR 2 risk claim the applicant did respond to an invitation to submit further information to the Director and clearly the adjudicator took the view that despite it, in overall fairness the applicant would have nothing useful to contribute by way of being heard if there was a hearing.

14.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same applies to the decision of the Director.”

10.  The applicant filed a Notice of Appeal dated 23 July 2018 to appeal the Judge’s decision.  He advanced the following grounds of appeal:

(1)  It was unfair that the Board did not hold an oral hearing because it felt the applicant had provided new information in reply to the Director’s letter, and there was hence no need for him to express himself further.  However, an oral hearing was necessary so that he could give evidence in person and through an interpreter, given that he was not legally represented and his first language was not English.

(2)  The Director should have referred his case to the Duty Lawyer service on the BOR 2 risk assessment.  He did not take the principle of high standard of fairness out of context.

(3)  The lack of language assistance amounted to procedural unfairness.  He sought help from his friends only because he received no help from the authorities.  

11.  In his written submission lodged on 13 November 2018, the applicant repeated the contents of his grounds of appeal and made the following additional points:

(1)  The Board should treat his appeal as a re-hearing and made its own findings independent of the Director’s findings, such as assessment of credibility, but this was not done.

(2)  He did not forego his right to provide additional information.  It was because of lack of language assistance that he did not understand the significance of the Director’s letter inviting him to provide further materials.    

12.  The applicant’s grounds of appeal are unarguable.  On the Board’s decision not to hold an oral hearing, it would appear that the applicant has misunderstood the Board’s reasons.  The Board considered that an oral hearing to hear the appeal from the Director’s BOR 2 assessment was not necessary because, having regard to the applicant’s letter in reply to the Director’s invitation, the facts and basis of the applicant’s claim remained the same as those he previously put forward to the Director, and not because the applicant had already provided new information in his letter.  Further, despite that appeals before the Board are in the nature of rehearing, there was no need for the Board to hear evidence from the applicant or to re-assess the credibility of his case on a further assessment of the applicant’s non-refoulement claim under the BOR 2 risk ground.  This is because the Board had performed that exercise when it considered the appeal against the Director’s first decision, and the applicant’s case in support of his non-refoulement claim has remained unchanged considering what he said in his letter in response to the Director’s invitation for additional information.   

13.  On the complaint that the Director did not refer his case to the Duty Lawyer service, the applicant already had access to, and had received legal assistance through, the Duty Lawyer service in presenting his claim to the Director culminating in the Director’s first decision.  If the applicant wished to be further assisted by the Duty Lawyer service, it was for him to take the initiative to approach the Duty Lawyer service.  As observed by the Judge, the Duty Lawyer service will consider request for further legal assistance on a case-by-case basis having regard to the merit of the case and other relevant factors.  We do not accept there was violation of the principle high standard of fairness in the Director’s decision on the BOR 2 risk assessment of the applicant’s claim or in the appeal from the decision to the Board.

14.  As to the complaint of lack of language assistance, there is no relevance in the applicant’s submission that he did not intend to forego his opportunity to provide additional information and that it was due to the lack of language assistance that he did not understand the Director’s letter.  The applicant had responded to the Director’s letter by his letter dated 12 April 2017.  This is indicative of his having knowledge of the content of the Director’s letter.  There is also no issue or suggestion by the Judge that he had given up his opportunity to provide additional information relevant to a BOR 2 risk assessment.  We also note that in his notice of appeal filed with the Board, he had provided new information about what his wife told him.  This shows that he was aware of, and had exercised, his right to furnish additional information that he considered to be relevant or useful to his claim.  Further, the Judge did not err in having regard to the fact that the applicant was able to properly articulate his case in the application to the Court, which is indicative of his having access to language assistance.  

15.  We would additionally observe in passing that, as held in Re Moshsin Ali [2018] HKCA 549 at [31] to [45], the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant.  This is because the Director’s decision is superseded by the Board’s decision, and it is not open to the applicant to challenge the Director’s decision by way of judicial review.    

16.  For the reasons above, we had dismissed the appeal.