RE VIRDHI KARUN

CACV 320/2020

[2021] HKCA 850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 320 OF 2020

(ON APPEAL FROM HCAL NO. 2415 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 1 March 2021 ([2021] HKCA 202), this Court (Yeung VP and B Chu J) dismissed the applicant’s appeal against the decision of DHCJ K.W. Lung (“the Judge”) given on 22 July 2020 in HCAL 2415/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) given on 24 October 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 29 January 2018 rejecting his non-refoulement claim.

2.  By a notice of motion dated 10 March 2021, the applicant now seeks leave to appeal against our judgment to the Court of Final Appeal on the following grounds:

(1)  Our judgment erred in determining the Judge did not fail to appreciate the significance of the applicant’s non-refoulement claim.  The lack of assistance provided to him is an error of law or procedure, or evidence of procedural unfairness, or failure to adhere to a high standard of fairness.  This is because non-refoulement claims are life and limb cases and should be assessed with caution, considering his vulnerability and disadvantage.

(2)  Our judgment did not address the issues regarding (6) to (10)[1] of his skeleton submission dated 22 January 2021 seeking leave to appeal against the Judge’s decision dated 22 July 2020.

(3)  The applicant was deprived of the right to make full grounds for appeal.  By not having the Determination translated or read back to him, he could not understand the Determination to the fullest and is unfair to him.  I had to submit everything in English because the Court would not accept grounds written in his own language, otherwise, he would have done that.

(4)  Instead, he had to ask for help without having the ability verify if everything is correct and true.  The fact that oral hearings and were arranged with interpreters mean that the Court recognizes the significance of language assistance, and therefore such assistance should extend to understanding the judgment.  This is contrary to the high standard of fairness required by law if this results in a deprivation of the right of a litigant to seek further avenues of appeal. 

(5)  The applicant reiterates the authorities, despite knowing of his language incapability, have not made reasonable arrangement to enable him to understand the content of the judgment and thereby depriving him of the right to seek further avenue of appeal.  This is a wrongful exercise of case management power and he verily believes that this should be looked into carefully as a case management power should extend all the way to how a judgment is delivered.

(6)  The applicant stands by the grounds about the lack of procedural unfairness and such discrimination against non-refoulement claimants is unacceptable.  He admitted that he had a friend to help him to prepare Form 86 and the affirmation for judicial review.  But it does not mean that he may always find someone to assist him with interpretation/translation and to deal with English documents.  Therefore, he made this submission to the best of his knowledge only.

(7)  A judgment that has been made with the lack of evidential consideration of issues raised in Court should be deemed an erred judgment.

(8)  If a litigant has not been informed fully of his right and be given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place.

(9)  The applicant seeks a reconsideration of the case with an oral hearing arranged.

3.  In compliance with the directions made by the Registrar of Civil Appeals on 11 March 2021, the applicant lodged his written submissions on 23 March 2021.  In the written submissions, he made similar grounds as set out in the Notice of Motion.  In gist, he complained of the procedural unfairness for the lack of language and legal assistance, and that he did not understand the decision and judgment made against him and therefore he was unable to make full grounds for his appeal.  He further contended that the Judge erred in finding that there is no reasonable prospect of success in his intended application for judicial review.

4.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. 

6.  Here, the applicant merely tried to regurgitate the arguments on the lack of legal and language assistance which were canvassed and duly rejected by the Judge at the lower court[2] and by this Court[3] and it is not a valid ground to support the appeal.  As explained at [10] and [12] of our judgment, assessment of evidence and risk of harm as well as finding on credibility is within the province of the Board and the court would not intervene unless with valid public law grounds which we found none in this case.  In our judgment, nothing set out in the Notice of Motion and the written submissions can be construed as viable ground of appeal to the Court of Final Appeal.

7.  For the reasons that we gave in our judgment of 1 March 2021, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the Notice of Motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

8.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.

[1]  The relevant part of the applicant’s written submissions dated 22 January 2021 are:

“6.   Even till now, the Call 1 Form was not explained to me by a qualified interpreter or translator and I therefore am again deprived of the right to make a full appeal.

7.  Since Deputy High Court Judge K.W. Lung did not consider this ground when making the judgment, I respectfully submit that the judgment is erred, and my case should be reconsidered.

8.  I hereby request for the translation and language assistance required for the better understanding of my case as this is one of the primary rights of a litigants. I also request for an oral hearing with an interpreter arranged and reserve the right to provide further submissions within a reasonable timeframe upon having the determinations read back to me.

9.  I therefore seek reconsideration of my case based on procedural unfairness.

(there is no paragraph 10 in the written submissions.)”.

[2]  [17] and [18] of the CALL-1 Form dated 22 July 2020.

[3]  [11] of our judgment.

CACV 320/2020

[2021] HKCA 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 320 OF 2020

(ON APPEAL FROM HCAL NO. 2415 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) made on 22 July 2020 in HCAL 2415/2018 refusing leave to the applicant to apply for judicial review.  By that decision, the Judge refused his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 24 October 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 29 January 2018.

Background

2.  The applicant is a national of India.  He came to Hong Kong on 13 October 2015 illegally via China.  He surrendered to the Immigration Department on 15 October 2015.  On 5 April 2016, he lodged his non-refoulement claim by way of written representation on the basis that if he were to return to India, he would be harmed or even killed by his uncle due to a land dispute.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1665. 

3.  By the Notice of Decision dated 29 January 2018, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 25 June 2018, the Board dismissed the appeal on 24 October 2018.  For the reasons and findings stated in [49] to [63] of the decision, the Board found that the applicant’s evidence was contradictory, evasive and that the applicant was not a credible witness. The Board was not satisfied that there was a genuine land dispute between the applicant’s family and his uncle.  The Board rejected the claim that the applicant and his family had been threatened or harmed by his uncle, cousin or people associated with them or that he will suffer harm from his uncle upon his return to India.  As the Board did not accept the fundamental basis of the applicant’s claim that he would face any form of proscribed harm if refouled, it was not necessary to consider internal relocation or if state protection is available.  The applicant’s case was dismissed on all applicable grounds.

The Judge’s decision

5.  On 31 October 2018, the applicant filed his Form 86 to apply for leave for judicial review against the Board’s decision.  In his supporting affirmation, as summarized by the Judge at [12] of the CALL-1 Form, he advanced the following grounds for his intended challenge:

(1)  Procedural unfairness – no legal advice or language assistance for his appeal; Board failed to address the Director’s the uniformed approach of rejecting all claims, but simply adopted the template basis for its assessment; hearing bundle was given to him shortly before the hearing without translation.

(2)  Procedural impropriety – cherry-picking the Country of Origin Information without giving reasons why preferred to those adopted.

(3)  Error/misdirection in law – failure to consider state acquiescence; failed to give allowance of pressure on him for losing his good memory; failed to give proper explanation to reject and deny all the basic facts of his risks of harm and threat back in India.

6.  The Judge heard the case on 19 September 2019 and by the CALL-1 Form of 22 July 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, gave the following reasons in refusing leave at [13] to [20] of the CALL-1 Form:

“13.  The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. The interpreter had explained the hearing bundle to him. His friend had assisted him to understand the Board’s Decision.

14.  I put the Board’s findings to him and asked him if he had any comments. He said that he had no comments.

15.  It is obvious that the applicant failed to establish his claims because the Board did not accept his evidence of the facts in support of his claim. The Board had given its explanations in its Decision between paragraphs 49 and 59. The Board had pointed out the inconsistencies of his evidence given to the Director and at the hearing, giving him the opportunity of giving explanations. He was unable to explain such inconsistencies. In the Board’s Decision, the Adjudicator had already cautioned herself that the applicant might be under stress or bewildered by his experience and lapse of time. Having taken such precautions, the Adjudicator assessed the credibility of his evidence, which she was entitled to do so. She is entitled to reject the applicant’s evidence if such evidence is obviously no believable or acceptable.

16.  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.

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 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.

19.  In light of the above analysis, it is not necessary to address each of the grounds above. They fail to establish a case against the Board’s Decision. The applicant had confirmed that he understood the hearing bundle before the appeal hearing. The Board had given its reasons for its conclusions on the facts of the case. To say that it cherry picked the Country of Origin Information without giving explanation as to why it preferred the information that went against the applicant’s case is only the applicant’s opinion without identifying the issues in question. This ground has nothing to do with the Board’s assessment of his credibility of his evidence. This also applies to the allegation that the Board had not considered state acquiescence, which is irrelevant to the issue of credibility of evidence.

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

The Appeal

7.  On 3 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are as follows:

“1.  I reiterate that the court and authorities did not exercise caution and diligence in handling my case as a self-represented litigant. It has been procedurally unfair.

2.  The Deputy Judge’s failure to acknowledge my language incapability is unfair to us. First of all, I was not able to read and write English and I was not provided any language or legal assistance; it is very harsh for the authorities to assume that I would able to understand English and to fill up a complicated appeal without any help. I had to fill the appeal from on my own with very limited help.

3.  The Deputy High Court Judge has failed to consider the signification and level of unfairness the lack of language and legal assistance has on me as a litigant and considered it not as a valid ground.

4.  Furthermore, I do not have language and legal assistance at all material times. In any event this should not discharge the Court’s duty of care towards a non-represented litigant who does not understand English. I also failed to elaborate any grounds in my affirmation because I was not able to find any legal advice as I cannot find any free legal representation and we are not able to handle such legal jargon.

5.  This is a legal error as the Court should have the duty and interest to ensure that the process has been procedurally fair. The fact that there are no other revenues for a non-refoulement claimant to seek an appeal against a decision made purely against credibility is procedurally unfair.

6.  The assessment of a non-refoulement claim should be fair and it is most certainly unfair if there has been a lack of assistance. The Deputy Judge has therefore erred in his consideration of the lack of interpretation service as the Deputy Judge has not made a finding that there was any interpretation service provided to me after the Director’s decision.

7.  I hereby request for the translation and language assistance required for the better understanding of my case as this is one of the primarily rights of a litigant.  I also request for an oral hearing with an interpreter arranged.”

8.  In compliance with the direction given by the Registrar of Civil Appeals on 24 November 2020, the applicant lodged his written submissions on 22 January 2021.  In his written submissions, he repeated his complaints on the lack of legal and language assistance similar to those set out in the Notice of Appeal.  The applicant further contended that as the Director did not make any adverse findings on his credibility, whereas the Board did, the Board’s decision should be reviewed, however, the Court failed to intervene and it is unfair.[5]

9.  We heard the appeal on 22 February 2021. 

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]:

(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 in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board 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 the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before 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 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

11.  The applicant’s complaints on the lack of language and legal assistance were canvassed and duly rejected by the Judge at the lower court hearing with reasons set out in [17] and [18] of the CALL-1 Form.  The applicant only sought to regurgitate the same argument and it is not a permitted course in pursuing the appeal.

12.  The applicant contended that it was unfair for the Board to find against him on the issue of credibility, when the Director did not, and that it is unfair that Judge did not intervene.  However, finding on credibility is within the province of the Board and upon our review of its decision, the Board had duly explained why the applicant’s case was not accepted.  In our view, the decision was well-founded and justified.

13.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and that the decision is without flaw.

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

The applicant, unrepresented, acted in person.