Dhaunchak Gurmel Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 231/2019

[2020] HKCFI 2828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 231 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”) refusing the Applicant’s claim of non-refoulement protection.

2.The Applicant, born in 1984, is a national of India.  He arrived at Hung Hom Control Point on 28 April 2016 and was refused landing and repatriated to Mainland China.  On 8 May 2016, he was arrested by the police and referred to the Immigration Department for investigation.  He claimed to have entered Hong Kong illegally from Shenzhen on 29 April 2016.  He then lodged a non-refoulement claim. He was subsequently released on recognizance.

3.The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [8-19] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the Applicant would be harmed or even killed by a drug dealer in his village because he had reported the drug dealer to the police in 2016.  He gave evidence at court against the drug dealer who shouted outside the court that “he would not relent until succeeding in taking my (the Applicant’s) life”.  In March 2016, he was attacked on two occasions.  He believed the drug dealer was responsible for the attacks.

The Director’s decision

4.By a notice of decision dated 14 September 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found the claimed risk of harm would unlikely to materialize; state protection is available to the Applicant and internal relocation is a viable option for him. The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The Applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The Applicant attended a hearing before the Board on 19 November 2018.

6.By a decision dated 16 January 2019, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the Applicant’s claim at paragraphs [30-35] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Applicant’s evidence at the hearing of his core claim was very inconsistent with his previous claims [30];

(2)  his other claims also made little sense [32];

(3)  many of his statements are neither coherent nor plausible for the reason that the claims are fabricated [35];

(4)  the Board did not accept that his claim that he had been threatened with death by the drug dealer [37];

8.Having considered all the evidence, the Board found that the Applicant would not be at real risk of any types of the proscribed harm, if refouled.

9.Accordingly, the Board dismissed the Applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

10.The Applicant filed a Form 86 on 24 January 2019 for leave to apply for judicial review of the decision of the Board.

11.In the supporting affirmation, the Applicant’s main complaints were that: his English ability is limited but he received no legal representation or language assistance for his appeal to the Board; the appeal bundle had never been read back to him; the decision of the Board has never been read or translated to him; and the Board should provide adequate reasons for its decision.

12.At the hearing on 15 October 2020, the Applicant had nothing to add in court.

Discussion

13.The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. 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 errors of law, procedural unfairness or irrationality in the decision of the Board.

14.When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

15.In the present case, the Board in fact rejected the Applicant’s appeal/ petition on the ground that it disbelieved the Applicant and found him to be an incredible witness.  The Board rejected his account of primary facts based on the major inconsistencies and contradictions in his evidence.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  The Board was entitled to come to its adverse findings on the credibility of the Applicant based on the material inconsistencies in his evidence at the hearing.

16.As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

17.The Applicant’s major complaint relates to the lack of legal representation and language assistance being provided to him for his appeal to the Board.  It is well established that the high standards of fairness do not demand interpretation service or legal representation being made available all the time to a non-refoulement claimant.

18.Such assistances should have been provided to the Applicant through the Duty Lawyer Service when the non-refoulement claim form was filled out and during the interview with the immigration officer in the first-tier screening. The Applicant was not entitled to further legal assistance from the Duty Lawyer Service when they did not see any merit in an appeal to the Board.  The hearing bundle at the hearing before the Board would have consisted of documents with which the Applicant was already familiar, the Applicant was unlikely to suffer any real prejudice without having had a translation of it before the hearing.  In any event at the hearing before the Board, the Applicant was assisted by an interpreter.  He could ask for assistance from the interpreter to understand the hearing bundle.  He alleged that the hearing bundle was not read back to him.  If he saw fit to have the translation service, he would have made his request, and I am sure such service would have been rendered.  He could also ask for adjournment from the Board for such assistance.

19.There is no merit in the complaint that the decision of the Board was not read or translated to him.  The affirmation in support of this application was prepared in English with various grounds of review.  These indicate that the Applicant must have been able to access to legal and language assistance and the decision of the Board having been explained to him before the affirmation could be prepared.  I do not accept the assertion that the alleged lack of legal/ language assistance would render the process before the Board or in this application unfair.

20.It is plain that the Board analysed the Applicant’s case carefully and gave adequate reasons for his refusal of the Applicant’s claim.

21.None of the complaints of the Applicant are reasonable arguably to challenge the findings of the Board.

22.Both the Director and the Board engaged in a joint endeavour with the Applicant and considered all relevant criteria.  They gave the Applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

23.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

24.For the reasons given, there is no prospect of success in the Applicant’s intended application for judicial review.

Disposition

25.Accordingly, leave to apply for judicial review is refused.

Dated 18 November 2020 

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1