Sandhu Navdeep Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 379/2020

[2021] HKCA 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 379 OF 2020

(ON APPEAL FROM HCAL NO 1917 OF 2018)

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Before:  Hon Barma JA and S T Poon J in Court

Date of hearing: 26 April 2021

Date of Judgment:  7 May 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 4 August 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 20 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 29 November 2016 rejecting his non-refoulement claim.

2.The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.The applicant is a national of India.  He entered Hong Kong on 22 October 2013 as a visitor and was permitted to remain for 14 days.  He overstayed and was arrested on 5 February 2014. He lodged a non-refoulement claim on 7 February 2014. 

4.The applicant’s claim was based on threats from members of an opposing political party.  His case was summarised by the Judge in [4]-[5] of the Form CALL-1^[1].

5.By his decision dated 29 November 2016 (“the Director’s decision”), the Director rejected the applicant’s claim having regard to the BOR 2 risk^[2], BOR 3 risk^[3], the torture risk^[4] and the persecution risk^[5]grounds.

6.By its decision dated 20 July 2018 (“the Board’s Decision”), the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that there was no credible evidence to show that the applicant was at risk from any of the proscribed harms upon his return. 

The Judge’s Decision

7.The applicant filed a form 86 on 12 September 2018 which contained no ground for seeking relief. 

8.In his affirmation in support of the leave application dated 12 September 2018, the applicant exhibited the Board’s decision. The applicant filed another affirmation on 2 January 2020 giving his mobile phone number and his new address.  The applicant did not give any ground for review in those affirmations.

9.The applicant appeared at a hearing on 2 July 2020 before the Judge in which he did not express any comment on the Board’s finding that his evidence was not credible.

10.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 [14] to [20] of the Form CALL-1:

“14. The applicant confirmed that he had a fair interview with the immigration officer and a fair hearing before the Board. He had no comments on the Board’s findings in paragraph 10 above.

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 10 above.

16. The Board did not accept the applicant’s factual evidence in support of his claim. He therefore has no factual basis in support of his claim.

17. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave to the applicant to apply for leave for judicial review.  Accordingly, I dismiss his application.”

Appeal to Court of Appeal

11.By a Notice of Appeal filed on 17 August 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds:

(1)  The court and authorities did not exercise caution and diligence in handling his case as a self-represented litigant;

(2)  The judge failed to appreciate the impact of the lack of language assistance.  Further, the CALL-1 Form was not read back to him in his native language;

(3)  The judge failed to consider the significance and unfairness from the lack of language and legal assistance;

(4)  Due to the lack of language assistance and legal advice, he was not able to elaborate on the grounds of judicial review in his affirmation;

(5)  The fact that there are no other avenues for a claimant to seek an appeal against a decision purely against credibility is procedurally unfair;

(6)  The judge failed to make a finding on whether interpretation service was provided to the applicant after the Director’s Decision.  The judge also erred in his consideration of the lack of interpretation service; and

(7)  The applicant wishes to have an oral hearing with an interpreter, with translation and language assistance provided to him.

Skeleton Submissions

12.In his skeleton submissions dated 29 March 2021, applicant reiterated the matters raised in the Notice of Appeal and submitted that:

(1)  The Director did not question his credibility but the Board did.  There should be a review mechanism for this;

(2)  The judge failed to recognize and address the significance of the lack of language assistance.  Further, the judgment was not read back to him;

(3)  The lack of free legal representation was procedurally unfair; and

(4)  The applicant requests translation and language assistance to better understand his case and an oral hearing with interpretation service.

13.We heard the appeal on 26 April 2021. At the hearing, the applicant had nothing further to say. 

Discussion

14.The applicant advanced grounds of appeal based on the lack of legal representation.  This court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

15.As for the grounds based on the lack of language assistance, we note that the applicant was able to provide Court documents in English.  He identified the alleged errors committed by the judge and the Board and made submissions on those alleged errors.  It is clear that either he is reasonably proficient in English or has access to language assistance.  We are not satisfied that the applicant suffered any real prejudice from the alleged lack of language assistance. 

16.The applicant was assisted by an interpreter in the oral hearing before the judge.  As noted by the judge at [12] - [14] of the CALL-1 Form, the applicant did not identify any error in the Board’s Decision in that hearing or any of the documents filed for the leave for judicial review application.  In this appeal, the applicant advanced a number of new grounds against the Board’s Decision which were never raised as grounds for judicial review before the court below.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).  In any event, these grounds lack particulars and are bound to fail. 

17.For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, appearing in person.