RE DALJIT SINGH

CACV 294/2017

[2018] HKCA 328

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 294 OF 2017

(ON APPEAL FROM HCAL NO 428 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 15 December 2017 refusing him leave to apply for judicial review. The applicant came from India. He entered Hong Kong on 1 August 2013 with a permission to remain until 15 August 2013. He overstayed beyond that permission and was arrested by the police on 26 November 2013. He lodged his non-refoulement claim on 28 November 2013. His claim was based on his fear of harm from his four maternal uncles because of a land dispute between his maternal uncles and his mother.

2.  By the Notice of Decision dated 20 April 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director assessed that, due to the low intensity and low frequency of the ill-treatments, the applicant’s fear would unlikely materialize upon return to India.  It was also considered that the availability of state protection and the possibility of relocation would lower or negate the perceived risk.  The decision covered the BOR 3 risk, the persecution risk and the torture risk. 

3.  By a Notice of Further Decision dated 1 February 2017, the Director also assessed the applicant’s claim in respect of the BOR 2 risk and decided against the applicant.

4.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 30 March 2017.  By its decision dated 13 July 2017, the Board found that the account given by the applicant was neither convincing nor credible.  It was found to be implausible that the applicant’s uncles would have targeted the applicant, instead of his mother as the land at no stage belonged to the applicant.  The Board also took the view that the delay for the applicant to lodge his non-refoulement claim adversely affected the veracity of his claim. Finally, the Board considered that the evidence given by the applicant was only hearsay and attached little weight to it.  The applicant’s appeal to the Board was dismissed.

5.  The intended judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed by the applicant on 20 July 2017 did not contain any grounds for judicial review.  It was deposed to in his affirmation filed on the same day that:

(1)  The land belonged to the applicant’s mother, and the threats by his uncles were directed at him because only the applicant could defend his mother;

(2)  The applicant was scared and mentally stressed when he arrived in Hong Kong, and he followed someone’s suggestion to state that he was a businessman when entering Hong Kong;

(3)  He was not aware of the procedure as to how the non-refoulement claim was to be lodged, so that he could not lodge his claim earlier;

(4)  He was aggrieved by the Board’s finding that his account lacked credibility;

(5)  He was not informed by the Director of the use of the Country of Origin Information (“COI”); and

(6)  The Director cherry-picked the COI and failed to consider the materials provided by him.

6.  The Judge heard the application for leave to apply for judicial review on 13 October 2017.  After summarizing the background of the case and giving consideration to the decisions of the Board, the Judge gave her reasons in refusing leave in paragraphs [15] to [18] of the CALL-1 form:

“ 15. The applicant seeks to apply for leave against both the Director and the adjudicator but there are no grounds against the director specifically. None that made sense. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken is not made out.

16. The applicant is aggrieved [that] the adjudicator did not find him credible and repeats parts of his claim as well as gives explanations in answer to the adjudicator’s criticisms. I would not interfere with the adjudicator’s finding; it is not unreasonable. In any event, the adjudicator added that even if his evidence was true, the injuries he claims to have suffered was not of the degree of severity required to establish a claim for non refoulement protection under any applicable ground.

17. 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.

18. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

7.  The applicant lodged the Notice of Appeal on 21 December 2017.  The grounds of appeal as stated the Notice of Appeal are as follows:

“ 1. The Unified Screening Mechanism (“the USM”) was implemented in Hong Kong in March 2014 following the Court of Final Appeal Judgment in Ubamaka Edward Wilson v Secretary for Security (FACV 15/2011) (“Ubamaka”). It was mentioned in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 (Prabakar”) that high standard of fairness should be maintained.

2. There are no resources in Hong Kong for a layman like me to seek legal representation for the BOR 2 consideration by the Immigration Department, Appeal and Judicial Review process and is clearly in violation of the principle of achieving ‘high standard of fairness’ and should be considered a miscarriage of justice.

3. I crave leave to submit further skeleton arguments with regards to the grounds that I have failed to specify in the application for leave to apply for judicial review.

4. Having regard to the above circumstances, I seek an order that the order set down by Deputy High Court Judge Woodcock be set aside.”

8.  The applicant agreed by letter dated 12 February 2018 that the appeal can be heard by two judges.

9.  On 13 February 2018, the Registrar of Civil Appeals gave directions regarding the conduct of this appeal, including a direction for lodging skeleton argument in support of the application.  Notwithstanding the direction, the applicant failed to lodge any skeleton argument in this appeal.

10.  We note that the ground of appeal relating to the lack of legal representation had never been relied upon in the Form 86 or in the supporting affirmation for leave to apply for judicial review.  As this court has said many times before, an appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below.  This is equally apposite in an appeal against the refusal of leave.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53 Rule 4(1) of the Rules of the High Court, see: Re Qadir Sher [2018] HKCA 160.

11.  In any event, the ground regarding the lack of legal representation has no merit.  The applicant had already had the benefit of legal representation before the Director when dealing with his non-refoulement claim.  There is no evidence that the applicant could not seek any legal assistance in respect of his BOR 2 claim.  As we have previously said, 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 [2009] 2 HKLRD 346 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.  As noted by the Judge in paragraph 1 of the CALL-1 Form, the applicant had applied for legal aid for his application for leave to apply for judicial review, but the application was refused.  We do not find anything amiss arising from his lack of legal representation before the Board or the Judge.

12.  On the facts of this case, we cannot actually see any additional basis for advancing a case on the BOR 2 risk separate from the BOR 3 risk, the torture risk, and the persecution risk.

13.  We take the view that the Board is fully justified in not accepting the applicant’s account.  The Board was also justified in the conclusions on the applicant’s failure in establishing the relevant risks at paras 57 to 63 of its decision. We do not find any unfairness in the process. 

14.  The Board also concluded that internal relocation is a viable option. Again we have no reason to differ. 

15.  As we have previously said, evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error, see: Re Lakhwinder Singh [2018] HKCA 246.

16.  We note that the applicant explicitly stated in his non-refoulement claim form that the injuries he suffered as a result of his uncles’ attacks were minor.  We are of the clear view that the applicant failed to meet the high threshold set by the law in respect of the minimum level of severity required to be established, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174, and GA v Director of Immigration (2014) 17 HKCFAR 60 at paragraphs 47 to 51.

17.  Having considered the materials before us, we are satisfied that the Director and the Board had fully reviewed the applicant’s claim.  We cannot find any errors of law or procedure in the proceedings before the Director or the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board.  There is no reasonable basis to challenge the decisions of the Director and the Board.  We take the view that the Judge’s observations in the CALL-1 form are justified and agree with the Judge that leave to apply for judicial review should be refused.

18.  For these reasons, we do not see any prospect of success in the intended judicial review, and dismiss the appeal accordingly.