RE LAL ROHAN

CACV 151/2019

[2019] HKCA 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2019

(ON APPEAL FROM HCAL 1177/2018)

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J U D G M E N T

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Hon Lam Ag CJHC (giving the Judgment of the Court):

1.  On 19 July 2019, the Court (Lam Ag CJHC and Andrew Chan J) handed down a judgment ([2019] HCA 799) dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 14 March 2019 ([2019] HKCFI 609). In the latter decision, the judge refused leave for the applicant to apply for judicial review.

2.  In the notice of motion filed on 23 July 2019, the applicant sought leave to appeal against the Court’s judgment to the Court of Final Appeal.  In the notice, he advanced the following grounds of appeal:

(1)  The judgment did not make logical sense;

(2)  The lack of assistance provided to him was an error of law or procedure, or evidence of procedural unfair, or failure to adhere to a high standard of fairness;

(3)  The Court failed to address the issues regarding (6) to (9) of his skeleton submission dated 14 June 2019;

(4)  It was a basic right of a non-refoulement claimant to understand what was decided against him, and to deprive of such a right amounted to a deprivation of right to seek further avenue of appeal or review;

(5)  Because he could not understand the decision of the Torture Claims Appeal Board, as well as the judge’s decision, he was not able to come up with grounds challenging such decisions;

(6)  He was able to obtain assistance from a friend in preparing court documents in the proceedings below, but the assistance was not professional;

(7)  The judgment was made with the lack of evidential consideration of issues raised in court; and

(8)  If a litigant had not been given an opportunity to be heard with such assistance, it could not be said that such assistance could not be of any use in the first place.

3.  He lodged written submissions on 6 August 2019.  In addition to repeating the grounds stated in the notice of motion, the applicant further submitted that:

(1)  The Court failed to address the issues regarding (4) to (7) of his summons (sic) dated 14 June 2019[1] (para 3);

(2)  The Court should not have dismissed his appeal unless it was satisfied that he understood the contents of the judgment (para 6);

(3)  He did not know what to be included in his written submission because of the lack of language assistance, and this was a discrimination against people with no legal assistance (paras 8 & 11);

(4)  Lack of language assistance amounted to procedural unfairness and should be taken into account by the authorities (paras 12 & 13); and

(5)  There was a lack of transparency in processing non-refoulement claims (para 14).

4.  Notwithstanding the request of the applicant, we do not see any reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing: see: Practice Direction 2.1, para 3.

5.  Most of the grounds of appeal (including the grounds alleging that the Court failed to consider issues raised in the applicant’s skeleton submissions for the appeal) regurgitate the complaint regarding the lack of language assistance.  The Court has already addressed this issue in paras 17 & 18 of the judgment. 

6.  Having read all the documents of the applicant, we cannot find any reasonably arguable grounds of appeal.  

7.  Further, the matters stated in the notice of motion and the written submissions raised no question of great general or public importance, as required under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  We cannot find any basis for leave to be granted on the “otherwise” limb.  Accordingly, the statutory thresholds for granting leave appeal to the Court of Final Appeal are not met.

8.  For these reasons, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal. We dismiss the notice of motion accordingly.

The applicant acting in person

CACV 151/2019

[2019] HKCA 799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2019

(ON APPEAL FROM HCAL 1177/2018)

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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 14 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 12 October 2015 and was granted permission to remain as a visitor for 6 days.  He overstayed since 19 October 2015 after the expiration of that permission.  He surrendered to the Immigration Department on 20 October 2015.  He was convicted for breach of the stay condition and a removal order was issued against him on 8 July 2016.  He lodged a claim for non-refoulement protection on 11 July 2016.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed, or even be killed, by his creditor because of his inability to repay a loan.  He said his creditor had falsely accused him of using false documents and he was detained and assaulted by the police as a result.  After bail was granted to him by a court in India, he escaped to Hong Kong. The facts of this case were briefly set out by the judge in [4] of the Form CALL-1 ([2019] HKCFI 609).

4.  By a notice of decision dated 8 August 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 29 March 2018, and the Board dismissed the appeal/petition on 15 June 2018.  In its decision, the Board found that the applicant’s assertions regarding the establishment and operation of his business and the circumstances as to his borrowing money from his creditor vague and lacking in commercial reality.  Parts of the applicant’s evidence were found to be inconsistent.  The Board did not consider the applicant to be a credible witness and found that the applicant had fabricated his claims.  It concluded that the applicant failed to establish there was a genuine and substantial risk of being subjected to ill-treatment if refouled. 

The judge’s decision

6.  The applicant filed his Form 86 on 22 June 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 were summarized by the judge at [13] of the Form CALL-1.  Briefly stated, grounds (1) and (2) related to the lack of legal representation, ground (3) concerned the late delivery of hearing bundle, ground (4) concerned the Board’s assessment of the country of origin information, and ground (5) related to the lack of language assistance.

7.  Upon the request of the applicant, an oral hearing was held on 11 January 2019. 

8.  As mentioned earlier, the judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [12] – [21] 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 interview with the Immigration officer and a fair hearing before the Adjudicator. Ground (3) fails.

16. The Adjudicator found against him on the facts of the case. The applicant therefore has no factual basis in support of his claim.

17. 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.” Grounds (1) and (2) do not sustain.

18. Ground (4) does not assist him as the Director and the Adjudicator have their discretion as to what evidence should be accepted or given weight.

19. Ground (5) is a non-point. The applicant said that he could understand the Board’s Decision himself.

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

Conclusion

21. 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

9.  On 27 March 2019, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

(a)   The judge’s failure to acknowledge his language incapability was unfair to him.  The Form CALL-1 was not read back to him, which meant that the judge did not even give weight to his handicap;

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

(c)   The hearing bundle should be translated to him so that he could understand its contents;

(d)   The applicant did not have language assistance at all material times;

(e)   It was unfair in the assessment of a non-refoulement claim in the absence of interpretation assistance to the claimant; and

(f)   The applicant requested translation and language assistance for the better understanding of his case.  He also requested an oral hearing with an interpreter.

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

(a)   His case should be reconsidered on the basis of unfairness and unreasonableness as regards to the lack of legal and language assistance;

(b)   He disagreed with the proposition that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 6 HKCFAR 187 nor the judgment of FB v 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;

(c)   It was unfair that the Board’s determination had not been read back to him so that he could understand its contents;

(d)   The lack of language assistance was discriminatory and should be deemed unlawful.  The authorities should take account of the facts that English was not his first language, that he had no right to work in Hong Kong, and that he was traumatized by the problem in his home country; and

(e)   He repeated his request for a translation and language assistance for the better understanding of his case.

11.  By a letter dated 27 March 2019, the applicant gave consent for this appeal to be heard by a 2-member court.

12.  We heard the appeal on 15 July 2019.

General principles

13.  Before we address the merits of this appeal, we would highlight some 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 the court will adopt an enhanced standard in scrutinizing the decision of the Board in non-refoulement cases 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 an 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 had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)   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

14.  In the present case, the Board rejected the applicant’s claim due to the adverse finding of the applicant’s credibility.  As explained above, assessment of evidence is within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on the public law grounds.  Having reviewed the materials available before him, the judge found no reasonable prospect of success to challenge the findings of the Board in the intended judicial review.

15.  The grounds of appeal of the applicant are basically regurgitation of the arguments advanced before the judge and duly rejected by him.

16.  We are of the view that the grounds of appeal are totally unmeritorious.

17.  Most of the grounds of appeal boil down to a complaint relating to the lack of language assistance. As this Court (differently constituted) has held in the past, the high standard of fairness required by law would not entail interpretation service being made available as an applicant may desire: see Re Gurnishan Singh[2018] HKCA 704; Re Gurung Sagar[2019] HKCA 658.  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 for the applicant in English.  Thus, either the applicant is himself conversant with the English language or he could readily obtain language assistance if needed. 

18.  We do not accept the lack of language assistance in the manner alleged by the applicant rendered the process unfair in the present case.

19.  The complaint relating to the lack of legal representation is also without merit.  It is now firmly settled that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the process.  In this respect, we fully endorse the judge’s analysis at [17] of the Form CALL-1.

20.  As the applicant failed to advance any viable ground that could reverse the decision of the judge, we see no reason to disturb the judge’s refusal of leave to apply for judicial review.

21.  For these reasons, we dismiss the appeal.