Re Gurdev Singh

CACV 261/2018

[2018] HKCA 703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 261 OF 2018

(ON APPEAL FROM HCAL 1097/2017)

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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.This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 12 June 2018 refusing leave to apply for judicial review. The applicant’s intended application for judicial review is against the decisions of the Director of Immigration dated 31 May 2017 and the Torture Claims Appeal Board dated 8 December 2017 respectively.

2.On 3 August 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions.  He also directed that if such submissions were not lodged within the prescribed time (ie not less than 28 days before the hearing of the appeal), the applicant would be deemed to have waived his right to have an oral hearing and elected to have this appeal disposed of on paper.  The requirement of lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of the applicant is important for the proper and effective functioning of our appeal process and this court has taken a firm stance against non-compliance with such requirement: see Re Manjit Kaur [2018] HKCA 247, para 10; Re Miha Md Limon [2018] HKCA 278, para 12; Re Ali Arshad [2018] HKCA 304, para 10; and Re Sk Sarfaraj [2018] HKCA 307, para 10.

3.On 20 August 2018, the hearing of this appeal was fixed for 11 October 2018.  When the hearing date was fixed, the applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

4.Despite the directions and reminder, the applicant did not lodge any skeleton submissions. Accordingly, the hearing date was vacated, and we now deal with this appeal on the basis of the material before us.

Background

5.The applicant is an Indian national.  He entered Hong Kong illegally on 7 July 2015 and was arrested by police on the same day. 

6.On 9 July 2015, the applicant lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by Shinda Pradhan (“SP”) in India who was the head of the applicant’s village as the applicant refused to support him and refused to join his political party.  The details of the applicant’s claim have been summarised by the Judge at [2] – [9] of the CALL-1 Form.

7.By the Notice of Decision dated 31 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director assessed that the level of risk of harm by SP and his people against the applicant was low and the Director was not satisfied that the applicant had been inflicted with ill-treatment to a minimum level of severity. The Director considered that with the passage of time, SP’s enmity would have diminished if not entirely dissipated. It was also considered that the availability of state protection and the possibility of relocation would further lower or negate the perceived risk. The decision covered the torture risk, BOR2 risk, BOR 3 risk and the persecution risk.

8.The applicant appealed to the Torture Claims Appeal Board against the Director’s decisions.  An oral hearing was held on 9 November 2017.  By its decision dated 8 December 2017, the Board found that there were a number of implausible and inconsistent features in the applicant’s allegations and considered that the applicant was incredible and had fabricated his claim.  The Board found that the applicant did not face a real risk of harm if refouled to India and it was not necessary to make any findings in relation to internal relocation and state acquiescence based on objective COI. The applicant was unable to discharge the burden upon him to establish any of his claims under the applicable grounds and his appeal to the Board was dismissed.

The Judge’s decision

9.The intended judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed by the applicant on 18 December 2017 did not contain any grounds for judicial review.  These were deposed to in his affirmation filed on the same day which set out three grounds for review, which can be summarized as follows:

(i)   lack of legal representation in his appeal before the Board;

(ii)   lack of language assistance;

(iii)   the Immigration Department had failed to give a fair chance to the applicant to explain his case on BOR2 risk.  

10.The Judge heard the application for leave to apply for judicial review on 18 May 2018.  After summarizing the background of the case and giving consideration to the decisions of the Director and the Board, the Judge gave his reasons in refusing leave in paragraphs [33] to [43] of the CALL-1 Form:

“Discussion

33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.^[1]

35. The Applicant complained that he had not been provided with sufficient legal assistance. He was represented by the Duty Lawyer Service until the Director rendered his decision on 31 May 2017.

36. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.^[2] The Applicant cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

37. The Applicant complained that he had not been given sufficient interpretation/translation assistance.

38. In court, the Applicant admitted he had a friend to help him to prepare Form 86 and the affirmation for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with documents for him. I am sure that was the case at all material times. The Applicant has much exaggerated his problem of getting interpretation/translation assistance and handling documents.

39. The Applicant complained that the Director did not give him a fair chance to explain his case further in relation to BOR2 risk.

40. The Director did not deal with BOR2 risk separately. He considered the Applicant's claim with respect to all the four applicable grounds in one go. The Applicant himself admitted that he had submitted all his information and documents to the Director for his consideration. At that stage, he was still represented by the Duty Lawyer Service. I do not accept that the Applicant had been deprived of any chance to present his case fully on BOR2 risk or any other applicable ground.

41. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find no evidence to substantiate any of the Applicant's complaints against the Director or the Adjudicator.

42. In my judgement, the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. Each had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Director’s report and the Adjudicator’s report showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

The Applicant's complaints are not reasonably arguable against either the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

The Appeal

11.The applicant lodged the Notice of Appeal on 25 June 2018 and sought to raise three grounds of appeal, namely:

(1)   the learned Judge had failed to consider all applicable grounds of non-refoulement and in particular non-refoulement on the grounds of risks of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance (HKBOR);

(2)   the learned Judge was wrong in accepting the adjudicator’s finding that “the only fact established is that the applicant is an Indian male, he faces no risk of any harm at all” to conclude that the persecution risk failed; and

(3)   the findings by the learned Judge that the adjudicator’s decision to be without fault were irrational.

12.By a letter received by the court on 11 July 2018, the applicant consented to this appeal being heard by a two-judge court.

Discussion

13.As for ground 1, we take the view that the Judge had clearly set out the reasons for the decisions made by the Director and Board in [22] – [26] of the CALL-1 Form.  We are satisfied that the decisions had covered all applicable grounds with factual support and adequate analysis by the Director and the Board.  The applicant’s complaint lacked particulars and is without basis.  Further, Article 22 of the HKBOR is not engaged in any of the applicable grounds for non-refoulement claims.  We are of the view that the Judge had fully considered the decisions of the Director and the Board and his observations and findings are justified. We see no error in law or legal principle in the Judge’s findings.  Ground 1 is devoid of merit and fails.

14.As for grounds 2 and 3, the applicant complained that the Judge was wrong and irrational in accepting the Board’s findings and decisions.  We see no substance in the complaints.  As mentioned earlier, we are satisfied that the Judge had duly considered the reasons given by the Director and the Board in rejecting the applicant’s non-refoulement claim which were, in gist, that the applicant’s story was implausible and there was no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatments or harm which meets the high threshold required by the law, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraph 172 – 174.  We do not see any evidence of procedural unfairness nor a failure to adhere to a high standard of fairness in the decisions made by the Director and the Board and we agree with the Judge’s findings. Grounds 2 and 3 are not reasonably arguable.

15.To conclude, having considered the materials before us, we find the judge’s observations to be justified.  We do not see any legal error of law or procedure in the proceedings before the Board and the Director.  Nor is there any reasonably arguable basis to challenge the fairness of the process. Determination of the merits of a non-refoulement claim is a matter for the Director and the Board, not for the court.  We agree with the Judge that leave to apply for judicial review should be refused.

16.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 acting in person