ACHHADA DILIP G v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 435/2022, [2023] HKCA 597

On Appeal from [2022] HKCFI 3195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 435 OF 2022

(ON APPEAL FROM HCAL NO 2368 OF 2018)

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JUDGMENT

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“Judge”) dated 18 October 2022 refusing to grant the applicant leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 15 October 2018.  In that decision, the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 30 April 2018 rejecting his non-refoulement claim.

Background

2.  The applicant is an Indian national born in 1977.  During an earlier visit to Hong Kong in 2007, he was arrested and later convicted for offences relating to a forged trademark. After serving a sentence of imprisonment, he lodged a torture claim with the Immigration Department on 9 November 2007, but withdrew that claim by letter dated 29 June 2010 and returned to India on 26 July 2010.

3.  He had visited Hong Kong a number of times since, and his last arrival in Hong Kong was on 1 October 2011.  On that date, however, he was arrested by the Hong Kong Police for fraud and money laundering, and was convicted and sentenced in June 2012 to a total of 30 months’ imprisonment.  Whilst in prison he raised a claim for non-refoulement protection on 23 November 2013.  The claim was based upon his fear that if he was returned to India, he would be harmed and killed by two loan sharks because he had failed to repay his debts to them.  On 11 January 2014, he was transferred to the Immigration Department after his discharge from prison, and was later released on recognizance. 

4.  The applicant’s claim was assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]  By a notice of decision dated 30 April 2018, the Director rejected the claim. 

5.  The applicant appealed to the Board against the Director’s decision.  The Board held a hearing on 19 July 2018 which was attended by the applicant.  On 15 October 2018, the Board issued its written decision, dismissing the applicant’s appeal and affirming the decision of the Director.  The Board noted that the applicant’s creditors were not known to be exceptionally violent or to be able to kill or harm anybody with impunity, that there was reasonable expectation that police protection would be available to the applicant in India, and that because the creditors were local people operating in the village, there was good prospect of relocation for the applicant within India.  Accordingly, the Board found that the applicant had failed to make out a case for non-refoulement protection on any of the applicable grounds.

The Judge’s decision

6.  On 26 October 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision, without specifying any grounds in that form.  In the accompanying affirmation, the applicant set out what appeared to be a list of headline grounds for judicial review, as follows:

“ (1) Irrationality – Failure to consider the concept of state acquiescence;

(2) Procedural impropriety – Insufficient inquiry; and

(3) Failure to provide adequate reasons as to decision made.

(4) Procedural impropriety/unfairness (failure to investigate into the country of origin information of India);

(5) Irrationality (failure to place weight on relevant information and/or selectively placing weight on irrelevant information);

(6) Irrationality (failure to consider a consistent system of human right violations);

(6) Irrationality (failure to consider if state protection exists in India);

(7) Irrationality (placing weight on irrelevant matters, or on inaccurate or incorrect fact(s));

(8) Procedural impropriety (failing to call for psychological and/or psychiatric reports and/or evaluations);

(9) Procedural impropriety (applying the incorrect standard of proof);

1, No reasonable basis for rejecting my claim credibility;

2, Failure to consider the extended form state acquiescence;

3, Failure to fully consider the COI reports in assessing risk to the I Achhanda Dilp Ghanshyambhai.

4, Irregularity of the decision-maker being a different person than the interviewing officer;

5, No proper basis for consideration of internal relocation;

My life fear if I return my home country my life risk or receiving death.” [sic]

7.  The applicant also attached an exhibit which at pages 21 to 43 contained what the Judge referred to as “a jumble of grounds … most of which are irrelevant to his case” and summarised as follows:[5]

“ (1) Irrationality: failing to consider state acquiescence; failing to consider state protection in India; failing to consider relevant information or selectively placing weight on irrelevant information; failing to consider a consistent system of human right violations.

(2) Procedural impropriety: insufficient enquiry; failing to provide sufficient reasons; failing to consider the country of origin information (“COI”) in relation to his case; failing to call for psychological and/or psychiatric report for evaluation and applying the incorrect standard of proof; no reasonable basis for rejecting his credibility and no proper basis for considering internal relocation.

(3)  Irregularity: there was a different decision-maker other than the immigration officer as the decision-maker.”

8.  The Judge, having considered the application on the basis of the documents alone, issued his decision on 18 October 2022, refusing to grant leave to apply for judicial review.  The reasons were set out at [16] – [21] of the Form CALL-1 as follows:

“ 16. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …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.’

19. The grounds set out in paragraph 15 above are mostly the applicant’s bare assertions or opinions without evidence in support. The Board did not call for psychological or psychiatric report for evaluation because these issues were never raised before the Board by the applicant. The Board acts as an appeal tribunal from the decisions of the immigration officer or the Director. The adjudicator has to be a different person. There is nothing amiss about this arrangement. All the grounds are not valid to challenge the Board’s Decision.

20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

The appeal

9.  In his notice of appeal filed on 1 November 2022, the applicant states that the court and authorities did not exercise caution and diligence in handling his case; that he was not able to read and write English but was not provided with any language or legal assistance; that the Judge failed to consider the unfairness due to the lack of such assistance; and that the Judge should have held a hearing so that the applicant could explain the errors in the Board’s decision with the help of an interpreter.

10.  The applicant’s appeal was originally listed for hearing on 18 April 2023.  By the directions of the Registrar of Civil Appeals dated 21 February 2023, the applicant was reminded of his duty to lodge his skeleton argument for the appeal and informed that if he should fail to do so, the hearing date would be vacated and the Court of Appeal would proceed to consider the appeal on paper only.  The applicant did not lodge any skeleton argument, and accordingly the hearing was vacated, and we have proceeded to consider the appeal on the papers alone.

Discussion

11.  In assessing the merit of the appeal, we have regard to the principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration;^[6] Re Md Shohel Sheak;^[7] and Re Limbu Birkhaman.^[8]  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

12.  In the present case, the Board found, having heard the applicant, that there was nothing to indicate that his creditors would seriously harm or kill him, that state protection could be expected, and that internal relocation was feasible, and that as a result there was no case for non-refoulement protection.  This is a conclusion that the Board, as the primary decision-maker, was entitled to come to, for the reasons it had given in its decision.  The grounds listed by the applicant in the affirmation supporting the Form 86 appeared to have been taken from a template and are not substantiated by any evidence or the facts and procedures in this case.

13.  As can be seen from the grounds quoted in paragraph 6 above, the complaint about lack of language and legal assistance put forward in the applicant’s notice of appeal in this court was not a ground put forward below.  For that reason alone it is not a proper ground of appeal.

14.  In any event, the applicant was legally represented and provided with language assistance on his claim before the Director.  At the Board proceedings, it appears that an interpreter was provided, and the Board’s decision was in part based on its assessment of the applicant’s oral evidence at the Board hearing.  There was nothing to show that the Board and the applicant had any difficulty understanding each other at the hearing.  In the circumstances of this case, it is difficult to see how the level of legal or language assistance provided resulted in unfairness in fact.  As the court has repeatedly held, the high standard of fairness required by law does not mean that legal assistance or interpretation service must be made available at any time the applicant desires: see Re Zunariyah;^[9] Re Zahid Abbas;^[10] Re Lopchan Subash;[11] Re Gurnishan Singh;[12] Re Gurung Sagar;[13] and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office.[14]

15.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that there was no reviewable error in his decision to refuse leave to apply for judicial review.  Accordingly, the applicant’s appeal is dismissed.