RE ABHAYJOT SINGH

CACV 203/2020

[2021] HKCA 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 203 OF 2020

(ON APPEAL FROM HCAL 987/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 23 December 2020, this court (Barma JA and Toh J) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 5 June 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 4 January 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1) I did not failure to lodge the skeleton submission would cost me an oral hearing. I specially requested for one. I relied too much on friends and NGO’s to help me out from this situation bcz I don’t have any’ knowledge about the judicial review system of Hong Kong as I did not get any translation from friends and NGO’s.

2) judges were procedurally unfair in my decision because as I mention before that I don’t have any knowledge about judicial review system in Hong Kong but ia ske da help from one of my friend to submit written submission for me but later I does not work. I requested for the legal aid to provide me a legal adviser to help me out but they refused it.

3) as the judges mention that my aunt have not interaction with police or other department.  As in media can show that India is well develop country but other side have alots corruption in police department that they don’t help to poor people bcz they are unable to provide money to register the FIR and take action against the crime.  My aunts are well riched and they can give money to any department or gangs to get the land from me.  Now the land price is a very higher than before and she will more force to get the land from me and I am unable to get protection from government.  In India have alots of department but if I go to other department to speak out my problem and then they will suggest to go police station and make but as I mention that police will not take action without getting BRIBE.  Other grounds will provide at later date.”

4.  The applicant lodged a written submission in support of the application on 14 January 2021.  The applicant alleged a number of public law errors in the Board’s Decision, such as failure to attain the high standard of fairness and errors in the evaluation of evidence, which were framed in board terms and lacked particulars.  As the alleged errors in the Board’s Decision are not related to any error in our judgment, they are not viable grounds of appeal and it is not necessary to evaluate them in detail.  The applicant also advanced the following grounds against the court:

“Ground standard of review

1) the court wrongly held that it should not apply an intensive or rigorous standard of review in particulars.

A) the court failed to apply the approach to the standard of review identified in risk of torture under part vii c is the immigration ordinance cap 115(torture Risk) under torture risk, the applicant must establish he has substantial ground for believing he will be subject to torture claims if returned to his home state. Those grounds cannot be speculative or theoretical and the risk must be real and personal. The standard proof is a low one. That case is including a common law right or constitutional should be subject to a high level of security.

The case raises important issues engaging the common law right of access to justices.

The court relied on the fact that the decision was predictive and based in part on other applicants cases analysis however that does not detract from the need for strict security in case involving real risk to continued access to justics. A decision the the older court fees based on other applicants case analysis would still be subject to strict security because of the country situation.

My aunt is well rich and they have a connection with the police and gangs with help of their other family member. The land price is much higher then before and she will not leave me until I handover the land to them.  I decided to handover to them half of my land but still they are not agree they want all of my land bcz the price is much higher then before.  But still the senior villagers try to convince her to take the halp of my land but its take time to convince her so give me time to solve my problem.”

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

7.  The “Ground standard of review” in the written submission dated 14 January 2021 is virtually identical to the grounds raised in the written submission dated 31 August 2020 filed for the appeal before us.  As we have held in [15] - [16] of our judgment, those grounds are mostly unintelligible and lack particulars.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

8.  For ground 1 of the Notice of Motion complaining about the lack of an oral hearing despite his express request for one, we note that the applicant was given an oral hearing before this court but his application for leave for judicial review was dismissed by the judge without an oral hearing.  This is because he did not request an oral hearing in the Form 86 or the supporting affirmation (RHC Order 53 rule 3(3)).  This ground is factually incorrect and entirely without merit.

9.  For ground 2 relating to the lack of legal assistance, 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[2018] HKCA 15). Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

10.  As for ground 3 based on the alleged danger he will face upon his return and the lack of state protection, we have held in [17] of our judgment that this bare assertion is not a valid ground of appeal by itself.  In any event, the Board has found that he would not be subject to risks upon his return and there is no public law error in the Board’s Decision.

11.  In our view, none of the grounds raised in the Notice of Motion is reasonably arguable before the Court of Final Appeal.

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  For these reasons, the Notice of Motion dated 4 January 2021 is dismissed.

CACV 203/2020

[2020] HKCA 1046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 203 OF 2020

(ON APPEAL FROM HCAL 987/2017)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Campbell-Moffat J given on 5 June 2020 refusing leave to the applicant 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 17 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 5 September 2014 and 9 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 3 July 2014 and was refused permission to land.  He lodged a non-refoulement claim on 4 July 2014.

3.  The applicant’s claim was based on threats from his aunts arising out of a land dispute.  His aunts are said to be politically well-connected.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 5 September 2014 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 9 May 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 17 May 2017, the Board dismissed the appeal on 17 November 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [41] of the Board’s Decision, the Board did not accept that the applicant’s claim that his aunts have influence over the Indian police.  At [45] the Board found that there was no satisfactory evidence to show that there was any continuing threat to the applicant if he were to return to India.  The Board was also satisfied at [44] that there was no evidence of the Indian authorities being complicit in the attacks of the applicant and at [46] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 30 November 2017 which contained the following grounds for judicial review against the Board, as summarized by the judge at [10] of the CALL-1 Form:

(1)  The Board misdirected himself in law by finding that the applicant had to have experienced torture in the past in order to establish substantial grounds for believing there was a risk of torture.

(2)  The Board failed to carry out sufficient and up to date specific and general COI research, which led to an unfair decision.

(3)  The Board failed to take into account any such research; failed to put weight upon the research actually carried out and taken into consideration; cherry picked that research and placed weight upon COI, which was of little or no relevance.

(4)  The Board failed to take cognisance of whether there was a pattern of gross, flagrant or mass violations of human rights in India.

(5)  The Board failed to analyse and assess whether state protection in its normal and extended form exists in India and whether the state had exercised the relevant due diligence.

(6)  The Board placed weight upon irrelevant, in accurate or incorrect considerations or unreasonably inferred such facts and unreasonably failed to take account of such facts and inferences as were favourable to the applicant.

(7)  There was no legal representation before the Board.

9.  A number of similar grounds were advanced against the Director in the Form 86 but it is not necessary to repeat them here.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  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 leave to apply for judicial review at [11] to [19] of the CALL-1 Form:

“11.  The applicant has a duty to state not only the grounds of his intended judicial review but must also show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. In order to do so, it is not sufficient to place before the court generic grounds without more. Nor does it assist the applicant to place before the court grounds which have no basis in fact to the case before the Adjudicator or are in contradiction to well established authority.

12.  As to i) above, the Adjudicator correctly outlined the legal principles to be applied in respect of a claim under Article 3 at paras 8 12 of his Decision. At no point within that test does he find that an applicant has to prove experience of torture in the past in order to establish substantial grounds for believing there will be a risk of torture in the future if the applicant is refouled to India. It is necessarily a part of the analysis of an applicant’s claim to quantify any harm inflicted upon the applicant in the past in order to assess the possibility or probability of harm in the future. To that end, the Adjudicator correctly noted that the level of harm done to the applicant previously was not severe. On any version of events it amounted to slaps, grazing, punches and kicks, none of which required hospitalisation. Under Article 3, there must be a possibility of severe pain and suffering. The facts did not suggest the possibility or likelihood of future severe pain and suffering given the past injury. The applicant has failed to establish (in his professionally drafted grounds) what evidence the Adjudicator had before him which would have indicated the requisite risk of harm i.e. the possibility of severe pain and suffering, and which he says the Adjudicator ignored.

13.  As to ii) and iii) above, this is a ground often cited before this court and never supported by reference to any COI whether that be COI not taken into consideration or COI incorrectly taken into consideration and thereafter misapplied. Until the applicant can point to COI misapplied in the manner suggested, this court is not in a position to consider the merits of such a complaint save for that which is self-evident upon the papers. The Adjudicator clearly took COI into consideration and applied it appropriately to the facts of this case. This was a private matter. The applicant went to the police once because of harassment and did not report the alleged assaults at all.

14.  As to iv), it is incumbent upon the Adjudicator to consider the basis of the claim before him. This was a private dispute. This ground is irrelevant to the facts at hand. The applicant should have indicated in what way an assessment of gross, flagrant or mass violations of human rights (if that had been the case) would have impacted upon the decision of the Adjudicator in his case.

15.  As to v), once again, this was a wholly private matter. In what way does the applicant say that the issue of state protection in either sense, was applicable to this claim? The Adjudicator took into account the applicant’s limited dealings with the police and addressed it.

16.  As to vi) above, this ground is wholly unhelpful. What facts were inaccurate, incorrect, irrelevant or not reasonably inferred? I have taken into account the applicant’s claim at its highest and find no fault with the Adjudicator’s analysis.

17.  As to vii), this matter has been the subject of a number of decisions of the Court of Appeal and is not a proper ground of review. As to the issue of legal representation, the applicant was represented by the Duty Lawyer Service before the Director. Having been unsuccessful at that stage, the Director of Legal Aid considered whether his case had sufficient merit to grant him further representation before the TCAB and decided it did not. There is no absolute right to free legal representation at all stages of proceedings.

Conclusion

18.  I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

19.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Grounds for appeal

12.  In the Notice of Appeal dated 18 June 2020 the applicant contended that:

“…I want to appeal because the judgment given is not fair. I am still in danger in India and still the situation is same and more worst and danger because my both aunts want me dead so that they can acquire the whole property. So in that situation I can’t go back and stay in India for good. I already mentioned the whole matter and situation in my case documents. I request you to accept my appeal.”

13.  The first part of his skeleton submissions dated 31 August 2020 are largely unintelligible and appear to bear no relation to the applicant’s case.  They refer to complaints concerning the authorities in Pakistan and the Philippines, none of which has any relevance to this application.  He went on to submit that:

(1)  the court wrongly held that it should not apply an intensive or rigorous standard of review in particulars;

(2)  the court failed to apply the approach to the “standard of review” identified the Immigration Ordinance, Cap 115. As it involves a consideration of the applicant’s common law and constitutional rights, the applicant’s case should receive a “high level of security”. The standard of proof is a low one;

(3)  the case raises important issues engaging the common law right of access to justice;

(4)  the court should not predict the outcome of the applicant’s case based on the analysis of previous cases.  The applicant’s case needs to have “strict security”.

14.  The applicant agreed by a letter of 18 June 2020 that the appeal could be heard by two judges.  The appeal was to be heard on 24 November 2020, but the applicant did not appear that day as he was unwell.  The appeal was therefore adjourned to 16 December 2020, when it was heard.  The applicant indicated that he had nothing to add to the matters already stated in his documents.

Discussion

15.  Quite apart from the unintelligibility of much of the written submission, many of the complaints set out in the written submission complain of errors on the part of the Director and the Board, but do not identify any error on the part of the judge.  These are not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  

16.  As for the grounds identified under the section “Ground standard of review” in the written submission, these are broad grounds that lack particulars.  These grounds simply allege that the judge failed to apply the proper consideration and scrutiny to his case.  However, the applicant failed to give any detail as to the alleged error by the judge.  These are thus not viable grounds of appeal.  In any event, we have carefully considered the CALL-1 Form and we cannot find any error by the judge.

17.  In the notice of appeal, the applicant made a bare assertion that it is unsafe for him to return.   This is not a valid ground of appeal as it is for the Board to make factual findings and the judge has found that there was no public law error in the Board’s finding that the applicant would not be subject to risks upon his return.  We would therefore also dismiss this ground of appeal. 

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person