Re Gurung Soyta

CACV 38/2019

[2019] HKCA 680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 38 OF 2019

(ON APPEAL FROM HCAL NO 901 OF 2018)

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Before: Hon Barma JA and Hon Bharwaney J in Court

Date of Hearing: 10 June 2019

Date of Judgment: 17 June 2019

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J U D G M E N T

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Hon Bharwaney J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 15 January 2019 refusing leave 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 dated 14 May 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 29 November 2016 rejecting the applicant’s non-refoulement claim.　

Background

2.The applicant is a national of India.  She entered Hong Kong on 2 February 2015 to work as a foreign domestic helper.  She was convicted of certain offences and was sentenced to 18 months’ imprisonment.

3.The applicant’s claim was based on threats from her husband.  The details of the applicant’s claim, as summarised by the judge at [3] of the CALL-1 Form, was that, if she was repatriated to India, she would be harmed by her husband who had beaten her up and had injured her with a knife before; and also that she was afraid of being harmed by Hindus as she was a Christian.

4.By a Notice of Decision dated 29 November 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 2 February 2018, the Board dismissed the appeal on 14 May 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [35] of the Board’s Decision, the Board said it doubted the applicant’s credibility.  At [43], the Board stated that it was also satisfied that state protection would be available for the applicant, if she requires it, and at [47], that internal relocation would be viable: that it was not unreasonable or unsafe for her to internally relocate to another region in India, nor would it cause undue hardship to her.

The deputy judge’s decision

7.The applicant filed a form 86 on 23 May 2018 which contained no ground for seeking relief.

8.In the affirmation in support of the leave application dated 23 May 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)   she was not assisted in her appeal to the Board as she did not understand English;

(2)   the Director rejected her application because he was adopting a very uninformed approach in coming to the conclusion;

(3)   the hearing bundle was not translated for her;

(4)   the Board’s Decision was not translated for her;

(5)   she was not legally represented in the Appeal, nor was she assisted by any lawyer for this application;

(6)   the Director did not show how he had exercised his balance in his reliance on the Country of Origin Information (“COIs”), before holding against her; and

(7)   having accepted that her husband had hit her with knife, the Board did not accept that he would harm her if she was repatriated back to India, without giving any explanation why the Board would not accept that her husband would harm her.

9.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 [22] of the CALL-1 Form:

“The Director’s Decision

11. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had heard her appeal and made its Decision.

12. Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

13. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

14. The Court of Appeal in Re: Ahmea Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Grounds (1) and (5) fails.

15. Ground (2) is her opinion without any evidence to substantiate. This ground fails.

16. The applicant may approach the Director, the Board or the Legal Aid Department for assistance on the language issue. The hearing bundle was given to her by the Director. She could have asked the Director for assistance. The Board’s Decision was given to her. She could also seek translation from the Board. When she prepared her application for leave for judicial review, she could apply for legal aid. She could obtain assistance from the Legal Aid Department.

17. She did not say why she had not obtained the assistance in her affirmation. It appears that she did understand the contents of the hearing bundle and the Board’s Decision, which can be seen from her complaint that the Director had not explained how he exercise his balance on the COIs for and against her claim. Also she complained the inconsistent approach of the Adjudicator in his treatment of the evidence about her husband’s behavior. All these demonstrate that she understands the contents of the Board’s Decision. Grounds (3) and (4) fail.

18. As to the way the Director and the Adjudicator exercised their discretion in accepting evidence and weighing the evidence before coming to a conclusion, it is entirely a matter for the Director and the Adjudicator as they are the primary investigators of the facts of the case. Ground (6) fails.

19. As to ground (7), the Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “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 makers….”

20.    As §14 of the same judgment, the Court of Appeal further said: “Determination of the merits of a non refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

21. Ground (7) also fails.

CONCLUSION

22. Having considered the applicant’s grounds in support of her application, I find that there is nothing amiss in the hearing before the Board. The Board was entitled to come to the conclusion as it had done. The applicant has failed to show that she had a reasonable chance of success in her proposed judicial review. I refuse to grant leave for the judicial review.  Accordingly, I dismiss her application.”

Grounds for appeal

10.In the Notice of Appeal dated 28 January 2019 the applicant advanced the following grounds of appeal:

“1. The [judge] has erred in determining that Ground 1 has failed just because I “already have the benefit of legal representation in presenting his case to the Director of Immigration”. Ground 1 referred to the lack of assistance due to my language failure. This has nothing to do with the legal representation before the Director as they are totally separate stages.

2.   The [judge] has not determined whether or not the Director has adopted a [uninformed] approach in coming to the conclusion and merely dismissed of the ground saying that it was my opinion without any evidence to substantiate.  Without determining whether or not the Director has in fact adopted the [uninformed] approach, the ground should not fail merely on the basis of opinion.

3.   Even till now, after raising the issue of language assistance, the judgment from [the judge] was not read back to me in my first language.  The lack of arrangement means that [the judge] did not even give weight to my handicap.

4.   Lastly, if Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the Court, I respectfully argue that since the Director did not make a finding on merits, there should be an extra authority other than the Board to make a finding on merits.  Without doing so the Board has no sole authority to dismiss my case based on merits.

5.   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 litigant.  I also request for an oral hearing with an interpreter arranged.”

11.In his skeleton submissions dated 9 May 2019, the applicant reiterated the grounds in the notice of appeal and sought a reconsideration of her case on the ground of procedural unfairness.

12.The applicant agreed by a letter of 28 January 2019 that the appeal could be heard by two judges.  We heard the appeal on 10 June 2019.

Discussion

13.In Ground 1 of the Notice of Appeal, the applicant was referring to [14] of CALL-1 Form where grounds (1) and (5) of the grounds for judicial review were dismissed.  The applicant complains that [14] does not deal with language assistance.  However, [14] should not be taken out of context and must be read together with [16].  Clearly, the judge had in mind the language assistance she could have received at different stages of her non-refoulement claim. He specifically stated that the applicant might have approached the Director, the Board or the Legal Aid Department for assistance on the language issue. The hearing bundle had been given to her by the Director. She could have asked the Director for assistance. The Board’s Decision had been given to her. She could have sought translation from the Board. When she prepared her application for leave for judicial review, she could apply for legal aid. She could have obtained assistance from the Legal Aid Department.

14.In Ground 3, the applicant complained that the CALL-1 Form was not translated and read back to the applicant in her own language. The court is not under any duty to do so.  As can be seen from [16] the judge was fully aware of, and properly dealt with, her complaint that she needed language assistance. The applicant was able to get assistance to understand the contents of the CALL-1 Form and to raise grounds of appeal against the judge’s determination in her Notice of Appeal and her Skeleton Submissions.

15.In our view, the applicant cannot credibly make any complaint, even in relation to the rejection of the claim in respect of “BOR 2” risk, without actually identifying what, if any, relevant additional information she could have provided to the Director and the Board had she been assisted by an interpreter at the times when she alleged she did not have such assistance. We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance.

16.There is no substance in Ground 2 of the Notice of Appeal. The judge was right to dismiss this ground in [15] because the applicant had not identified any matter which suggests that the Director was adopting an uninformed approach.  On appeal, she still has not identified any matter to support this claim.

17.There is likewise no substance in Ground 4 of the Notice of Appeal. The proposition contained in in Ground 4 is not supported by any authority.

18.In conclusion, the applicant did not in the notice of appeal or her skeleton submissions identify any error of law by the judge, any relevant matter that he failed to consider, or any other reason why the refusal of leave for judicial review was plainly wrong. Nor can we discern any.

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

The applicant acting in person