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CACV 352/2020
[2021] HKCA 633
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 352 OF 2020
(ON APPEAL FROM HCAL NO 2439 OF 2018)
________________________
| BETWEEN |
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MANPREET SINGH |
1st Applicant |
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MANDEEP KAUR |
2nd Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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Before: Hon Barma JA and S T Poon J in Court
Date of Judgment: 7 May 2021
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J U D G M E N T
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Hon S T Poon J (giving the Judgment of the Court):
1. This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 28 July 2020 refusing leave to the applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 25 October 2018 dismissing the applicants’ appeal against the decision of the Director of Immigration (“Director”) dated 15 December 2017 rejecting the applicants’ non-refoulement claim.
2. The applicants have consented to their appeals being heard by two judges of the Court of Appeal.
3. The applicants are husband and wife and they are nationals of India. Their immigration history and the basis of their claims have been summarized by the judge at [3] - [6] of the Form CALL-1[1]. In short, they claim to have been attacked by the wife’s father because he opposed to their marriage.
4. By his decision dated 15 December 2017 (“the Director’s Decision”), the Director rejected the applicants’ claim having regard to the BOR 2 risk[2], the BOR 3 risk[3], the torture risk[4]and the persecution risk[5]grounds.
5. The applicants appealed to the Torture Claims Appeal Board. After a hearing on 14 September 2018, the Board dismissed the appeal on 25 October 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection. Primarily, the Board found that the applicants’ evidence was not credible and that state protection would be available.
The Judge’s Decision
6. The applicants filed a form 86 on 2 November 2018 which contained no ground for seeking relief.
7. In their affirmation in support of the leave application filed on the same day, the applicants advanced the following grounds for judicial review, as summarized by the judge at [13] of the CALL-1 Form:
(1) There was no legal representation for their appeal to the Board or for this application;
(2) There was no language assistance for them for the appeal or for this application;
(3) The Board had not dealt with the Director’s error properly;
(4) The hearing bundle was not translated into their language;
(5) The country of origin information was selected without giving reason for such exercise; and
(6) The Board refused to accept their relationship without any evidence.
8. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review. The Judge gave the following reasons in refusing to extend time and leave to apply for judicial review at [14] to [22] of the Form CALL-1:
“14. The applicants appeared before me and confirmed that they were at liberty to make their submissions to the immigration officer and Adjudicator of the Board.
15. I put the Board’s findings to them. They refused to accept the Board’s findings, making the same comments on the Board’s refusal to accept their relationship as above.
16. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.
17. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.
18. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.
19. The Board had set out the reasons in its Decision why it found their evidence not credible. It was entitled to form its own views after assessment of the evidence before it. When it said that there were numerous inconsistencies that the applicants were unable to give satisfactory explanation, it would not be unreasonable for the Board to have come to such conclusions.
20. Grounds (1), (2) and (4) fail in view of the authorities above. Grounds (3) and (5) are their opinions without any evidence or particulars in support of them. Ground (6) fails too as the Board had given its reasons in its Decision why their relationship was not accepted despite documentary evidence. It found that documentary evidence was not reliable as they could be obtained by other means. The direct evidence from their oral evidence was more reliable. Such evidence did not support their relationship. This is the main reason why the Board rejected their relationship.
21. The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.
CONCLUSION
22. Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them leave to apply for the intended judicial review. Accordingly, I dismiss their application.”
Appeal to Court of Appeal
9. By a Notice of Appeal filed on 11 August 2020, the applicant advanced the following grounds of appeal:
(1) The judge failed to acknowledge their difficulty with English. The CALL-1 Form was not read to them in their native language;
(2) The judge failed to consider the unfairness from the lack of language and legal assistance;
(3) There was no language or legal assistance at all material times. Their inability to elaborate on the grounds raised in the affirmation was due to the lack of free legal representation;
(4) The fact that there is no other avenue for a non-refoulement claimant to appeal against a decision made purely against credibility is unfair;
(5) The judge ought to have considered the lack of interpretation service after the Director’s decision; and
(6) The applicants request the translation and language assistance and for an oral hearing with interpretation service.
Skeleton Submissions
10. The applicants failed to comply with the direction made by this Court on 14 January 2021 requiring them to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.
11. The hearing date on 26 April 2021 was therefore vacated and the applicants were debarred from lodging any written submissions. We have dealt with the appeal on paper on the basis of the materials already filed with the Court.
Discussion
12. We would consider the ground based on the lack of legal representation first. This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas[6]). Representation at later stages is merits based, and this is not procedurally unfair. In any event, the applicants failed to show how the lack of legal representation caused any prejudice in the leave application.
13. As for the ground based on the lack of language assistance, we note that the applicants were able to provide Court documents in English. They identified the alleged errors committed by the Judge and made submissions on those alleged errors. It is clear that either they are reasonably proficient in English or have access to language assistance. We are also not satisfied that the applicants suffered any real prejudice from the alleged lack of language assistance.
14. We note that similar arguments based on the alleged lack of language and legal assistance had been raised in the application before the Judge. The Judge applied the relevant legal principles and dismissed those grounds in [16] – [20] of Form CALL-1. The assertion by the applicants that the Judge failed to consider the alleged unfairness from the lack of language and legal assistance is not true as a matter of fact.
15. As for the ground based on the alleged lack of avenue to appeal against a decision based purely on credibility, the applicants did not give any particulars for this ground or cite any authority in support. This ground does not appear to have any merit.
16. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) |
(S T Poon) |
| Justice of Appeal |
Judge of the |
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Court of First Instance |
The applicants, unrepresented, acting in person.
[1] [2020] HKCFI 1725.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[5] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.
[6] [2018] HKCA 15
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