CACV 172/2022
[2022] HKCA 1275
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 172 OF 2022
(ON APPEAL FROM HCAL NO 193 OF 2019)
________________________
BETWEEN |
| | GURJANT SINGH | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
________________________
| Before: | Hon Chow JA and ST Poon J in Court |
| Date of Written Submissions: | 22 August 2022 |
| Date of Hearing: | 19 September 2022 |
| Date of Judgment: | 10 October 2022 |
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J U D G M E N T
_______________
Hon Chow JA (giving the Judgment of the Court):
1. On 28 April 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 14 April 2022 refusing to grant him leave to apply for judicial review (“the Order”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 20 December 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 October 2018.
BACKGROUND
2. The Applicant is a national of India. He entered Hong Kong as a visitor on 21 February 2015 and was permitted to stay until 10 March 2015. He did not leave Hong Kong after the expiry of his limit of stay. On 13 March 2015, he surrendered to the Immigration Department. On 18 June 2015, he lodged a non-refoulement claim, alleging that, if refouled, he would be harmed or killed by a drug trafficker (Gurdev) for having reported Gurdev’s illegal activities to the police. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 1055).
3. By a Notice of Decision dated 22 October 2018, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s decision to the Board. On 20 December 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).
5. The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:
“The Board considered the alleged attack which resulted in the claimed serious injuries and unconsciousness of the applicant. It found that such claim was inconsistent with the applicant’s descriptions of the injuries. If he had been unconscious for two or three days, he should have complained of a concussion, organ injuries or broken bone. Nevertheless, he only suffered bruises and scratches and was only given painkillers at the hospital [33]. Thus, there was no evidence suggesting that he was seriously harmed from the alleged attack. Further, the Board found that the applicant’s reports to the police were based on hearsay evidence and the law enforcement could not operate on hearsay information only. Meanwhile, on the applicant’s evidence, the police raided Gurdev’s house upon receiving the complaints which indicated an operating criminal justice system [35]-[37]. In addition, the Board found that there was no state involvement [39]. For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.”
THE JUDGE’S DECISION
6. On 21 January 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.
7. On 14 April 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13(1).… …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.’
15. The applicant has not raised any valid ground to challenge the Board’s Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”
THIS APPEAL
8. In his Notice of Appeal dated 28 April 2022, the Applicant complained about the following matters:
(1) The court and the authorities failed to exercise caution and diligence in handling his case as a self-represented litigant.
(2) There was unfairness arising from his language incapacity and lack of legal assistance.
(3) The court failed to hold any oral hearing notwithstanding his request for an oral hearing contained in his “additional sheets for submission on 2 September 2020”, and the court did not consider or discuss his grounds raised in the additional submissions.
(4) A decision made purely on the basis of credibility was unfair.
9. In his skeleton submissions dated 22 August 2022, the Applicant repeated his complaint regarding the lack of legal and language assistance, and further complained that although the Director had not made any adverse finding on his credibility, the Board made such finding.
10. At the hearing of the appeal, the Applicant had nothing to add.
DISCUSSION
11. The court’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).
12. In respect of the Applicant’s complaints raised in the Notice of Appeal referred to in §8 above:
(1) In relation to paragraph 8(1) above, the complaint is vague and general, and cannot constitute any viable ground of appeal.
(2) In relation to paragraph 8(2) above, it is well-established that (i) the high standard of fairness required to be observed in the assessment of a non-refoulement claim does not include the provision of language assistance to a non-refoulement claimant at all times that he wishes to have such assistance, and (ii) a non-refoulement claimant is not absolutely entitled to free legal representation at all stages of the proceedings. The Applicant had free legal and language assistance from the Duty Lawyer Service in relation to the assessment of his claim by the Director. In respect of the appeal to the Board, he informed the Board (as confirmed by the Duty Lawyer) that he did not wish to attend any oral hearing but instead wanted his appeal to be disposed of on paper (see §8 of the CALL-1 Form and §5 of the Board’s Decision). The Board accordingly dealt with his appeal on paper. In respect of his application for leave to apply for judicial review, he did not request for an oral hearing in his Form 86 pursuant to Order 53, r 3(3) of the Rules of the High Court, Cap 4A. The Judge therefore disposed of the application on paper. In so far as he complains that the decision of the Judge was not interpreted to him and he did not understand the decision completely, we have looked at the documents in the court file below and note that his documents and correspondence with the court were written in English of a reasonable standard. The Plaintiff’s Notice of Appeal dated 28 April 2022 and skeleton submissions dated 22 August 2022 are likewise written in English of a reasonable standard. These indicate that the Applicant has received reasonable language assistance as required by him. The Applicant could have made a request to the Judge to arrange for an oral interpretation of the decision to him if that was required. Apparently, he did not make any such request. We do not consider it open to him to raise as a ground of appeal that the decision of the Judge was not interpreted to him. Overall, we are satisfied that the processes relating to the assessment of his non-refoulement claim and his application for leave to apply for judicial review were fair, and his complaint about the lack of language/legal assistance has no substance.
(3) In relation to paragraph 8(3) above, the Judge was entitled to deal with the Applicant’s application for leave to apply for judicial review on paper by reason of his failure to request for an oral hearing in the Form 86 under Order 53, r 3(3) of the Rules of the High Court. It was a matter for the Judge to decide whether to accede to the Applicant’s request for an oral hearing in his written submissions received by the court on 2 September 2020. In those submissions, the Applicant complained about (i) lack of legal representation, (ii) lack of language assistance, and (iii) lack of a fair hearing. Those complaints were not raised in his Form 86 or his affirmation filed on 21 January 2019. Out of fairness to the Applicant, we have considered the complaints contained in his written submissions of 2 September 2020, but do not consider that they have any substance for the reasons mentioned in (2) above.
(4) In relation to paragraph 8(4) above, the Board’s Decision was not based purely on the Applicant’s credibility. As mentioned by the Judge at §9 of the CALL-1 Form, the Board also considered that there was no state involvement. We have read the Board’s Decision, and note that the Board found that there was the necessary state protection available to the Applicant in India (see §§31-39 and 61-62 of the Board’s Decision). Further, we do not see why a decision of the Board based on a non-refoulement claimant’s credibility is of itself unfair. Lastly, it is well-established that the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board has been shown in the present case.
13. In respect of the Applicant’s skeleton submissions dated 22 August 2022, it is neither here nor there that the Director did not make any adverse finding on his credibility. The Applicant’s appeal to the Board was a re-hearing. The Board was not bound by the Director’s determination, and was entitled to reach its own view on the Applicant’s credibility.
14. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 14 April 2022, and has failed to raise any viable ground of appeal against the Order.
15. The Applicant’s appeal has no merits and is dismissed, with no order as to costs.
16. If required, the Applicant may make an arrangement with the clerk of this Court for an oral interpretation of this judgment to him at a mutually convenient time.
(Anderson Chow)
Justice of Appeal | (ST Poon)
Judge of the Court of
First Instance |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her 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 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] 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.