Re Khan Irfan

CACV 361/2020

[2021] HKCA 490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 361 OF 2020

(ON APPEAL FROM HCAL 2805 OF 2018)

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Before:  Hon Au JA and Coleman J in Court

Date of Hearing:  29 March 2021

Date of Judgment:  9 April 2021

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J U D G M E N T

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

1.This is the appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 30 July 2020 refusing to grant him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1751.

2.The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 27 November 2018 (“the Board’s BOR 2 Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 10 September 2015 (“the Director’s First Decision”) and 10 January 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3.The applicant filed his Notice of Appeal on 21 August 2020 (dated 30 July 2020).  But he only filed his skeleton submissions on 2 March 2021, a day later than the date (on or before 1 March 2021) as directed by the Registrar of Civil Appeals. While the applicant failed to explain the reason for delay, we will allow the skeleton submissions to be filed out of time since the delay was only one day and minimal.  By a letter dated 21 September 2020, the applicant gave consent to the appeal being heard by a two-member court.

A.      Background

4.The applicant is a national of India.  He entered Hong Kong on 25 February 2014 as a visitor but subsequently overstayed since 5 March 2014.  On 5 March 2014, he surrendered to the Immigration Department.  On the same date, he lodged a non-refoulement claim.

5.The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s Decision, and paragraphs 14-23 of the Board’s decision dated 11 November 2016 (“Board’s First Decision”).

6.The applicant claimed that he would be harmed or killed by his money lender, Dilip, because he was unable to repay the loan.  Briefly stated, the applicant claimed to borrow money from Dilip who was said to be influential in India.  The applicant’s business did not go well and he was unable to repay Dilip within requested time at the requested sum.  Dilip then threatened him.  Out of fear, he fled to Hong Kong for protection.   

B.      The Director’s Decisions and the Board’s Decision

7.The Director assessed the BOR3 risk^[1], the persecution risk^[2], and the torture risk^[3] in the Director’s First Decision.  The Director’s Second Decision covered the assessment of the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.The applicant first appealed the Director’s First Decision to the Board.  After considering the applicant’s case, the Board decided to exercise its power under section 12 of Schedule 1A of the Immigration Ordinance, Cap.115 (“IO”) not to hold an oral hearing for the applicant since it found that there was no issue arose concerning the credibility of the applicant and he had not submitted any new evidence since the date of the Director’s First Decision (paragraphs 5-6 of the Board’s First Decision).  The Board found, assuming that the applicant’s evidence as to facts within his own knowledge, and events at which he was present, was truthful and reliable, that the applicant still failed to establish a case of non-refoulement as his dispute with Dilip remained private in nature.  The applicant’s evidence on Dilip’s influence in India and on the lack of state protection or availability of internal relocation were found to be fanciful and solely based on speculation (paragraphs 24-42 of the Board’s First Decision).  As a result, the Board dismissed his appeal.  

9.On 21 February 2017, the applicant appealed out of time the Director’s Second Decision to the Board.  In the Board’s BOR2 Decision, the Board considered whether it should allow the late filing of the notice of appeal under section 37ZT(2) of the IO.  It was not satisfied with the applicant’s explanation for his delay in filing the notice of appeal before the Board (paragraphs 15-20 of the Board’s BOR2 Decision).  In any event, the Board found that there was no special circumstance to allow the late filing of the appeal in light of the fact-findings in the Board’s First Decision (paragraph 21 of the Board’s BOR2 Decision).      

C.      The Deputy Judge’s Decision

10.The applicant filed a Form 86 on 7 December 2018 seeking leave to apply for judicial review against the Board’s BOR2 Decision.  The grounds of review stated in his supporting affirmation were summarized by the Deputy Judge at [19] of the Deputy Judge’s Decision:

“19. In his affirmation in support of his application, the applicant relied upon the grounds below.

1.There was no hearing for his appeal against the Director’s Further Decision and, in particular, the Board refused to grant him the extension of time for late filing without giving him an opportunity to explain.

2.There was no legal or language for him – procedurally unfair to him.

3.It was unreasonable for the Board to assume without a hearing that he had been advised by the duty lawyer that he should provide all information in a timely manner as it was at the early stage of the proceedings.

4.It was unreasonable for the Board to assume that he had received the BOR 2 letter at his residential address, considering that it was an ordinary mail which was highly possible to misplace and it was not a registered mail.

5.The Board’s Decisions were not read to him and there was no translation for him. Although he had obtained assistance from his friend, he was not certain if his friend had translated everything to him.”

11.After hearing the applicant and considering the documents, the Deputy Judge refused to grant leave to the applicant with reasons stated at [20]-[27] of the Deputy Judge’s Decision: 

“DISCUSSION

The Board’s Decision dated 27 November 2018

20. The applicant appeared before me. He said that he was detained in prison because he had worked illegally in Hong Kong. He also complained that the Board had not provided him with a hearing.

21. I have considered the facts and findings in the Board’s Decision.

22. The Board was entitled to assume that the applicant had received the BOR 2 letter from the Director (the Director’s Further Decision) under section 37ZV of the Ordinance:

Notices

(1) A notice or other document (howsoever described) required to be served or given (howsoever described) by the Director, an immigration officer or the Appeal Board on or to another person under this Part may be served on or given to that other person—

(a) …;

(b) by leaving it for the person, or by sending it by post addressed to the person—

(i) if the person is a claimant, at the last known residential or correspondence address provided by the claimant to the Director or the Appeal Board under section 37ZA(2);

23. The Court of Appeal held in Re: Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018 §22 that the applicant is not entitled to free legal representation at every stage of the proceedings as he had obtained free legal representation at the screening stage.

24. The Non-refoulement Claim Form, in which the applicant had to fill in the facts and particulars provides that the applicant has the responsibility to disclose fully all the facts with details in support of his application. It is reasonable for the Board to assume that the applicant’s lawyer had properly advised the applicant of this responsibility. In fact, the applicant has not argued that he did not know that this is his responsibility in his grounds in support of this application.

25. The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 at §16 that high standard of fairness does not require provision of language assistance or translation to the applicant at all stages of the proceedings. Of course, the court usually provides interpretation service in the court hearings.

26. For the reasons above, it is obvious that all of the applicant’s grounds fail.

27. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

D.      Grounds for appeal

12.The applicant in his Notice of Appeal essentially advanced two grounds of appeal, namely, the lack of language and legal assistance before the Deputy Judge.  In his skeleton submissions, he elaborated that the Deputy Judge ignored his complaint that the Board’s BOR2 Decision was not read to him.  He also conceded that he was not entitled to free legal representation but insisted that the language assistance was required.

13.At the hearing, the applicant made the point that it can be clearly seen on television what the situation in India is, with tension and fights between members of different religions, but otherwise confirmed that he had nothing further to add to what have already been set out in the Notice of Appeal and the written submissions.

E.      Discussion

14.The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

15.First, 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 and COI materials, 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.

16.Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.Third, 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, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

18.In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

19.Bearing these principles in mind, we are of the view that this appeal has no merit.

20.The applicant’s complaints of the lack of language and legal assistance were dealt with by the Deputy Judge at [23] and [25] of the Deputy Judge’s Decision.  In our view, the Deputy Judge was correct in so finding:

(1) In relation to the complaint about any lack of language assistance, apart from the well-established principle relied upon by the Deputy Judge, we also note that in the present case, all the court documents, including the affirmation filed in support of the leave application, the notice of appeal, and the written submission in support of this appeal, were written in English. In the premises, it is clear that either the applicant is himself conversant with the English language or he has access to language assistance of his own if he finds it necessary.  There is therefore nothing in the complaint that the Board’s BOR2 Decision was not read to him;

(2) In relation to the complaint of lack of legal assistance, it is also devoid of any merit.  We note that in the applicant’s supporting affirmation for the leave application before the Deputy Judge, he was able to identify the alleged errors said to be committed by the Board.  In addition, the applicant was able to identify the alleged errors by the Deputy Judge said to be made in the Deputy Judge’s Decision and provided written submissions on the alleged errors. Therefore, there is nothing to suggest that the applicant suffered any prejudice from the alleged lack of legal assistance.  In any event, this court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: [18] of Re Zunariyah [2018] HKCA 14; [11] of Re Zahid Abbas [2018] HKCA 15; [11] of Re Tariq Farhan [2018] HKCA 17; and [13] of Re Lopchan Subash [2018] HKCA 37.  In this respect, he was provided with legal representation under the Duty Lawyer Scheme in relation to his claim before the Director.  There is therefore no merit in this ground.

21.In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  We do not think the additional point made orally at the appeal hearing changes the analysis.  There is no basis to disturb the Deputy Judge’s Decision.

F.       Disposition

22.For all these reasons, we dismiss the appeal.

The applicant acting in person