Re Rajender Kumar

CACV 297/2020

[2021] HKCA 721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 297 OF 2020

(ON APPEAL FROM HCAL 2391 OF 2018)

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Before:  Hon Barma JA and Lisa Wong J in Court

Date of Hearing: 10 May 2021

Date of Judgment:  21 May 2021

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal by the abovenamed applicant, Mr RAJENDER Kumar, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 16 July 2020 refusing him leave to commence judicial review proceedings (“Judge’s Decision”).  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 31 August 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 6 November 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of India now aged about 45, is a fear of being harmed or even killed by the partner (“Rakesh”) of his deceased creditor Tilak Raj (“Tilak”) if he should return to India because he had defaulted in repayment.  The circumstances said to have given rise to such alleged fear were summarised in detail in paragraph 6 of the Director’s Decision and in paragraphs 30 to 43 of the Board’s Decision and in gist in [6] of the Judge’s Decision set out in the Form CALL-1 dated 16 July 2020 [2020] HKCFI 1572 (“Form CALL-1”).

3.Briefly:

(1)  In March 2013, the applicant wanted to become a self-employed driver.  To purchase a truck at the price of 2,500,000 Indian Rupees on hire purchase, he needed a loan of 1,500,000 Indian Rupees.

(2)  He knew Talik, a loan shark in Kamal City.  He borrowed 1,500,000 Indian Rupees (“Loan”) from him at a rate of interest at 2% per annum against a pledge of the land deed of his home.  The applicant agreed to repay the principal and interest in full within 1 year.

(3)  The applicant’s business did not go well.  He struggled to repay the hire purchase instalments for the truck. The bank repossessed the truck and he could not carry on his business.  By the end of 2013, he could only repay around 25,000 Indian Rupees for interest on the Loan to Talik.

(4)  From late 2013 to mid 2014, Talik and Rakesh kept visiting the applicant to chase for repayment of the Loan.  They threatened to kill him.  The applicant was scared particularly because Rakesh was the Municipal Corporator of Ward No 1 of Karnal of the Bharatiya Janata Party (“BJP”).

(5)  The applicant’s attempt to flee to Bangkok on 5 June 2014 failed as he was denied landing and immediately repatriated.

(6)  After staying with a friend in Dehli for 20 to 25 uneventful days, the applicant came to Hong Kong on 30 June 2014 with permission to stay until 14 July 2014.  He returned to India on 4 July 2014 upon learning from his family that Talik and Rakesh had agreed to give him more time to repay the Loan.

(7)  However, Talik and Rakesh and 3 to 4 of their underlings took the applicant from his home and brought him to their office in Karnal City.  After telling them that he could not repay the Loan, Talik and Rakesh ordered their underlings to assault the applicant.  They threatened to kill him before releasing him.

(8)  The applicant’s back bone was fractured in the attack.  He was hospitalised for 3 months until mid September 2014.  The police did not take action on the applicant’s father’s report, saying that the applicant had to repay the Loan.

(9)  The applicant repaid a further sum of 300,000 in August 2014. He left India for Hong Kong again on 20 September 2014.

(10)         After arriving in Hong Kong, the applicant learnt from his father that Talik had died in 2016 and Rakesh had taken over the moneylending business.  Rakesh went to the applicant’s home every month to enquire about the applicant’s whereabouts. After the applicant’s father gave Rakesh a bounced cheque of 1,200,000 Indian Rupees in June 2017, Rakesh filed a civil complaint against the applicant in the Indian court.   

Entry into Hong Kong, lodgment and processing of NRF Claim and other developments

4.The applicant landed in Hong Kong on 21 September 2014 with permission to stay until 14 days. He was arrested for overstaying on 3 March 2015.

5.The applicant later lodged the NRF Claim.  He completed a Non-refoulement Claim Form dated 29 September 2017.  In processing the NRF Claim, the Director’s representatives interviewed the applicant on 31 October 2017.  The applicant then had legal advice and representation from the Duty Lawyer Service (“DLS”).

Director’s Decision

6.The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  First, the intensity and frequency of past ill-treatment did not attain a minimum level of severity. Anyways, the creditors’ actions were more likely to be gestures to put pressure on the applicant to settle his debt and not really intended to harm or kill him.  Also, the applicant’s behaviour (in leaving Hong Kong only after a few days) was not consistent with a person who is genuinely in fear of being imminently harmed and even killed.  His assertion is in doubt and his credibility is not reliable.

(2)  Second, the availability of state protection would further lower or even negate the level of risk (if any).  There is objective country of origin information (COI) showing that reforms and improvements have been and are on-going in India and that the Indian government has taken practical steps to improve the effectiveness, and monitor the conduct, of the police.  There are also alternative avenues to seek justice in India. As for Rakesh’s alleged association with the BJP, no evidence is adduced to show that the BJP had anything to do with the private loan dispute.

(3)  Third, reasonable internal relocation alternatives are available in such a vast and populous country as India.  It is not unduly harsh for the applicant who is an able-bodied adult with working experience to move to another part of the country.

Appeal to Board and Board’s Decision

7.The applicant appealed against the Director’s Decision to the Board.

8.The Board conducted a rehearing of the NRF Claim on 19 April 2018 at which the applicant, with suitable interpretation, testified before, and answered questions by, the Board.

9.The claim on the ground of torture risk failed because the applicant does not face a foreseeable, real, personal and present risk of torture as defined in the Immigration Ordinance.  The claim under BOR 2 failed due to the lack of any real risk that Rakesh would kill the applicant.  The claim found on BOR 3 failed because, based on what happened before, there is no substantial risk that the applicant will be subjected to ill-treatment reaching a minimum level of severity.  In any event, there is sufficient systemic protection in India and it is difficult to see that the applicant would be unable to access it.  Lastly, the applicant does not face any persecution risk for a Convention reason.  The Board further found if there is a risk that Rakesh will inflict death or torture on the applicant, it is neither unreasonable nor harsh to expect the applicant to relocate elsewhere in India.

Application for leave for judicial review and Judge’s Decision

10.By a Notice of Application for Leave to Apply for Judicial Review issued against the Board under HCAL 2391/2018 on 29 October 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision without stating any ground for relief in the Form 86.  In the supporting affirmation, the applicant merely said that he would like to have the Board’s Decision[5] set aside because it disregarded the danger and threats he faced if deported.

11.The Judge refused leave after an oral hearing at which the applicant was present and assisted by a Hindi interpreter.  His reasons can be found in [14]-[18] of the Form CALL-1:

“14. The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. His friend had assisted him to understand the Board’s Decision.

15. I put the Board’s findings to him and asked him if he had any comments. He said that he had no comments.

16. It is obvious that the applicant failed to establish his claims because his case does not fall within any of the statutory provisions or the Convention for protection. The Board was clearly right in its application of the law on his case. I find nothing amiss in its assessment of the case.

17. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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 applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Appeal to Court of Appeal and grounds of appeal

12.By a notice of appeal filed herein on 24 July 2020, the applicant appealed against the refusal of leave for judicial review on the following “ground” (sic):

“I would like to reject and reviw the decision made by the Torture laim Appeal Board on my Non-refoulement Case. They disregard my dangerous situation.”

13.On 7 April 2021, the applicant lodged written submission, the material part of which reads (sic):

“2. I disagree with the decisions made by the Director of Immigration as well as the Torture claim appeal board. I do not think my case has been determined Fairly.

3. Without knowing thoroughly how case was determined, it is not easy for me to appeal against that decision. I believe there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim.

4. First and foremost, I was never provided with proper legal and language assistance, with my limitation in terms of resources, funding and language capability, it has been burdensome for a non-refoulement like me to appeal against the decision. The determination of Appeal/Petition has never been read to me on my own language, and I believe such failure in providing proper assistance to non-refoulement claimant is procedurally unfair.

5. I urge the authorities to take into account the real procedural unfair throughout the case and to put public policies of trying to dispose of non-refoulement claims as quickly as possible aside.

6. If a litigant has not been informed fully of my rights and be given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place.

7. The discriminatory act of authorities towards non-refoulement claimants merely on the basis of quick disposed of non-refoulement cases is unacceptable and is detrimental to the spirit of the Judicial system I have not been taken into account.  For this sole reason leave should be granted.”

14.The applicant appeared in person, with the assistance of a Hindi/English interpreter at the hearing of the appeal on 10 May 2021.  He had nothing to add to the notice of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

15.The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

16.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2) & (4)].

Discussion

17.As we understand it, the applicant alleges that there is a public policy of disposing of non-refoulement claims by the authorities as quickly as possible, which policy is discriminatory against non-refoulement protection claimants (“Ground 1”).  Further, he considers the decisions made as regards the NRF Claim to be unfair due to the lack of proper legal and language assistance to him, which prevented him from understanding the decisions made against him and from effectively appealing against them (“Ground 2”).

18.Neither Ground 1 nor Ground 2 had been raised in the application for leave for judicial review before the Judge.

19.In any event, they are both unmeritorious.

20.The applicant has not advanced any or any proper evidential basis for suggesting that the Director, the Board, the Judge or any of them was motivated by a desire to dispose of his case as quickly as they could.  To the contrary, our review of the summaries and analyses of the NRF Claim contained in the Director’s Decision (20 pages), the Board’s Decision (15 pages) and the Judge’s Decision (4 pages)[7], reveals the time, care and independence with which those decisions were made and thus shows the suggestion under Ground 1 to be utterly groundless and most unjust.

21.As for Ground 2, it does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

22.In this case, the applicant did already have the benefit of legal representation from the DLS in presenting his case to the Director.  Other than a general complaint, he has not pointed out in what ways he was prejudiced before the Board or the Judge due to his being unrepresented.  And we can see none, particularly given the purely factual nature of the NRF Claim.

23.As for interpretation services, they were/are provided at the hearings before the Board, the Judge and this court.  The Applicant did not highlight any particular aspect of such proceedings where the lack of interpretation service before/after these hearings hampered the presentation of his case.

24.The applicant has not made out, and we cannot discern, any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor did he show any error of law, procedural unfairness or irrationality in the findings by the Board.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed. 

Disposition

25.For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.   

The applicant, unrepresented, appeared in person