Re Vijay Kumar

CACV 441/2018 & CACV 442/2018

(Heard together)

[2019] HKCA 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 441 OF 2018

(ON APPEAL FROM HCAL NO. 1032 OF 2017)

_______________________

_______________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 442 OF 2018

(ON APPEAL FROM HCAL NO. 1033 OF 2017)

_______________________

_______________________

_______________________

J U D G M E N T

_______________________

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

1)  The appeal

1.These are the respective appeals by two applicants against the decision of Deputy High Court Judge Bruno Chan in which he refused to grant leave to the applicants to apply for judicial review for their two respective HCAL actions that were heard together.

2)  Factual background

2.1The first applicant, Vijay Kumar (‘A1’), is the husband of the second applicant, Lovepreet Kaur (‘A2’).  The applicants are nationals of India.  They legally entered Hong Kong but overstayed and were arrested.  On 21 October 2015, they filed their non-refoulement claim form to the Immigration Department.

2.2The basis of the applicants’ claim is that if they returned to India they would be harmed or killed by the elder brother of A1 over certain familial land.

2.3The background facts have been summarized in the decision of the Judge at [1]-[5].

3)  The Director’s Decision and the Director’s Further Decision

3.1The Director of Immigration (‘the Director’) decided against the applicants’ torture claim on 24 August 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2By a further decision of the Director of 1 August 2017, the Director also assessed BOR 2 risk in respect of the applicants and decided against the applicants (‘Director’s Further Decision’)

4)  The Board’s Decision

4.1The applicants appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 2 September 2016.  After a hearing held on 17 October 2017, during which it was mainly A1 who gave evidence and answered questions put to him, the Board dismissed the applicants’ appeal on 30 November 2017 (‘the Board’s Decision’).

4.2The Board found that the applicants’ case regarding A1’s dispute with his brother over their father’s land to be incoherent, self-contradictory and vague.  It found that A1 was unable to explain some serious difficulties in his account.  It found that it did not make sense for A1’s brother to threaten A1 when it was their father who owned the land.  The Board found no doubt to find that the applicants’ case was a fabrication with no basis whatsoever in truth.

5)  Decision of the Judge

5.The Judge assessed the applicants’ respective applications for leave for judicial review, with both applications consisting of identical grounds.  He found that there are recent Court of Appeal authorities which restate the position that high standards of fairness does not prescribe a CAT claimant or a claimant for BOR 2/BOR 3risk or a claimant for persecution risks must have an absolute right to free legal representation at all stages of the proceedings.  The Judge found that the applicants’ complaint about lack of translation service was without merit, as they were initially represented by duty lawyer and they were provided with an interpreter before the Board.  The Judge found no improper reliance on country of origin information by the Director or the Board.  The Judge found that the Director did explain its decision on BOR 2 in the Director’s Further Decision.  The Judge found that there was no prejudice for the Director’s non-attendance at the applicants’ hearing before the Board.  Importantly, the Judge found that the applicants’ case was rejected by the Board because A1 was found to be an incredible witness.  The Judge also found the dispute between A1 and his brother was a localized one, and there was no justification to afford the applicants with non-refoulement protection on this basis.

6)  Grounds of appeal

6.The applicants’ notices of appeal and written submissions are almost identical.  The grounds of appeal and submissions are that: there was a lack of legal representation with regard to their BOR 2 claim; there should have been prior legal advice to the applicants before the Director was allowed to determine the applicants’ BOR 2 claims; the applicants could not produce specifics or particulars because they are not proficient in English; full country of origin information was not considered and there was cherry picking of information.

7)  Our view

7.1We are of the view that the applicants’ appeals are without merits.  The applicants provided no reasonably arguable grounds for judicial review.  Many of the grounds of appeal have been considered by the Judge below.  An appeal against refusal of leave for judicial review is not an occasion for the applicants to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

7.2The Director had previously requested the applicants to submit additional information for any claims they might wish to make in relation to BOR 2.  The applicants failed to submit the same.  In the absence of additional facts, the Director was entitled to proceed with its Director’s Further Decision based on the materials before him.  There is no basis for the applicants now to advance a case of BOR 2 independent of BOR 3 considerations.  There is no reasonably arguable basis to challenge the fairness of the process based on the absence of an additional interview or further legal representation.  If the applicants have valid grounds and particulars for their BOR 2 allegations, they have not demonstrated it before the Board or the Judge, not to mention they still have not demonstrated any of such ground in these appeals.

7.3Accordingly, the appeals are dismissed.

Applicant of CACV 441/2018, unrepresented, appearing in person

Applicant of CACV 442/2018, unrepresented, appearing in person