Re Avtar Singh

CACV 197/2021

[2021] HKCA 1288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 197 OF 2021

(ON APPEAL FROM HCAL NO 2249 OF 2018)

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Before:  Hon Barma and G Lam JJA in Court

Date of Judgment: 14 September 2021

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.On 21 April 2021, Deputy High Court Judge To (“the Judge”) refused to grant leave to the applicant to apply for judicial review[1] against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 25 May 2017.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 27 November 2015 rejecting the applicant’s non‑refoulement claim.

2.On 28 April 2021, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.The applicant is an Indian national.  He arrived in Hong Kong on 9 February 2012 and was permitted to remain as a visitor until 23 February 2012.  He did not depart and overstayed.  The applicant was arrested by police on 9 May 2012 and was transferred to Castle Peak Bay Immigration Centre on 10 May 2012.  The applicant lodged a torture claim on 11 May 2012 and was released on recognizance on 11 June 2012.  His current non‑refoulement claim under the Unified Screening Mechanism was lodged on 23 May 2014.

4.The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by members of the Akali Dal Party, because during an election campaign he refused to join that party and to leave the Congress Party of which he was a member.  The factual background was summarized at paragraphs 2 to 3 of the Board’s decision, and at [10]–[14] of the Judge’s decision contained in the Form CALL‑1.

5.By notice of decision dated 27 November 2015, the Director assessed the applicant’s non‑refoulement claim on the grounds of BOR 3 risk,[2] persecution risk,[3] and torture risk,[4] and determined it against the applicant. 

6.The applicant appealed to the Board against the Director’s decision dated 27 November 2015.  An oral hearing was held by the Board on 14 September 2016, during which the applicant declined to answer questions from the Board.  Because the applicant had not suffered any severe injury, serious harm or severe pain and suffering in India, the Board found that there was no real risk of harm in the event of refoulement. 

7.The Board also considered that as it had already been 5 years since the events in question occurred, the applicant was unlikely to be of interest to those who assaulted him in India.  The Board also found that reasonable state protection was available and that internal relocation was viable.

8.As a result the Board dismissed the applicant’s appeal on 25 May 2017.

9.On 29 May 2017, the Director invited the applicant to submit additional facts in support of his non‑refoulement claim based on BOR 2 risk.[5]  the applicant did not respond by the deadline.  By notice of decision dated 13 June 2017, the Director issued his second decision, rejecting the applicant’s claim in relation to BOR 2 risk.[6] 

Decision of the court below

10.On 16 October 2018, the applicant sought leave from the court to apply for judicial review, out of time, against the Board’s decision dated 25 May 2017.  The Judge noted that there had been a delay of nearly 14 months without explanation, and stated that the application could be refused for this reason alone.  Nevertheless, the Judge considered the merits of the applicant’s grounds for judicial review, which were summarized by the Judge at [21] of the Form CALL‑1 as follows:

“ (1) the Director and the Board erred in their finding of fact in the 2015 Notice and the Decision respectively; both decisions are Wednesbury unreasonable;

(2) he was not provided with legal representation after the Screening Interview;

(3) it was procedurally unfair that he was not aware of any decision being issued;

(4) he was not given language assistance: the Decision of the Board was never read or translated to him and no one explained the decision to him and he had to rely on his friends for interpretation;

(5) the Director cherry-picked the COI for the purpose of defeating his claim; and

(6) the Director showed an unfair attitude and failed to attain the high standard of fairness required by the Wednesbury test.”

11.Following a hearing on 31 March 2021 at which the applicant appeared before the Judge, on 21 April 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [22]–[26] and [29]–[33] of the Form CALL-1 as follows:

“ Grounds (2), (3) and (4): procedural unfairness, lack of legal and language assistance

22. These three grounds can be conveniently dealt with together. In Re Zafar Muazam, Re Zunariyah, Re Zahid Abbas, Re Tariq Farhan, and Re Lopchan Subash, the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security nor the judgment of FB v. Director of Immigration prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The Applicant had the benefit of the services of a qualified interpreter and legal representation by the Duty Lawyer Service in presenting his case to the Director at the Screening Interview. He also had the services of a qualified interpreter at the oral hearing before the Board. Nothing amiss arose from the non-availability of legal representation before the Board.

23. The Applicant complained that it was procedurally unfair that he was not aware of the Decision having been issued until he reported to the Immigration Department. It is his one sided assertion only as the Board had not been invited to respond. As this Court has noticed, in the normal course of event had the appellant provided a correct address to the Board, the Board would inform him the outcome of his appeal by mail to his given address. Even accepting his allegation at its face value, he has not shown any procedural unfairness. He was informed of the outcome of his appeal in time for him to pursue his claim by further legal proceedings, namely to apply for leave to apply for judicial review. He has suffered no adversity. He was not deported and continued to remain in Hong Kong.

24. As for his complaint that the Decision has not been explained or translated to him, this has no bearing on the correctness or otherwise of the Decision, which was made after he had his chance to be heard and when he had the services of a qualified interpreter in presenting his appeal.

25. Insofar as the further pursue of his claim by way of judicial review is concerned, he knew and he accepted that interpretation is a luxury not available in Hong Kong and a luxury he is not entitled to. In any event, he had, according to his affirmation, at least been explained the outcome of his appeal when he reported at the Immigration Department. He had his own access to interpretation services from among his own circle. He knew the reasons for the Decision and was able to prepare a well written affirmation in English in support of his application. In any event, even if not, when he appeared before this Court, the Court would enquire, as it did, from him his grounds of application and he would, as he did, have the services of a qualified interpreter. The Court will maintain a high standard of fairness. The Court will be inconvenienced in doing so, but the Applicant’s interest will not be compromised. There is no substance in these grounds of application.

Ground (5): Cherry picking COI

26. In essence, the Applicant complained that the Board or the Director erred in not giving more weight to the COI in support of his allegation of police corruption, susceptibility of police to political influence, unavailability of state protection, ineffectiveness of internal relocation, etc. The weight to be attached to any piece of evidence is a matter for the tribunal of fact, ie the Board. It has to be assessed on the totality of the evidence. Unless it can be shown that no reasonable tribunal would have made such a finding, the Court will not intervene.

…

29. These are finding of facts by the Board. There is nothing to suggest that the Board erred in law or was guilty of procedural unfairness or was unreasonable in coming to its finding that state protection and internal relocation are available to deal with or avoid the risks and fears. This ground for review therefore fails.

Grounds (1) and (6)

30. Under the first ground, the Applicant complains that the Board’s Decision was Wednesbury unreasonable. Under sixth ground, he complains that the Decision is unfair. But he gave no particulars. The best approach would be to bear these complaints in mind while assessing his other grounds and then in the end after having regard to the totality of the evidence, come to a view if the Board’s Decision was indeed Wednesbury unreasonable and unfair. Having considered the other four grounds and the totality of the evidence, this court is unable to come to any view that the Decision was Wednesbury unreasonable and unfair.

Merits of the substantive application

31. The function of the court in judicial review is not to re‑assess the non‑refoulement claim afresh. This Court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. The Court had scrutinised the Decision, the 2015 Notice and 2017 Notice (though it was not necessary to do so), all the documents, the Applicant’s submissions and the COI. It is the opinion of the Court that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM. The Board concluded that there was no factual basis to support the Applicant’s claim for non‑refoulement protection under any of the four applicable grounds. The Board’s Decision was utterly without fault. There were no errors of law, procedural unfairness or irrationality in its Decision. Therefore, the Court concluded that there are no merits in the substantive application.

Prejudice

32. In summary, the delay of nearly 14 months in making this application is inordinate and by any standard undue. The Applicant could offer no credible valid explanation for the delay. In fact, he offered a fake reason. If a challenge is allowed to proceed so grossly out of time, it would cause prejudice to the public administration. The delay is by itself an abuse of the process of the court and the non‑refoulement protection arrangement. To allow the challenge to proceed would encourage other claimants to indulge in such abuse. It would cause unnecessary waste of judicial and public resources and delay the genuine non‑refoulement claimants’ access to the court. It would render it difficult for the Director to perform his duty of maintaining immigration control. Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. This application does not raise any questions of general public importance.

Disposition

33. The application was out of time by nearly 14 months. The delay was grossly inordinate.  The Applicant has no explanation for such undue delay.  In fact, he offered a false reason.  On this ground alone, the application may be refused.  However, the Court went further to explore the merits of the substantive application, but found there is none.  The Court was satisfied that there was no error of law, procedural unfairness or irrationality in the Decision of the Board.  Indeed, the Board adhered to a high standard of fairness.  The Board’s Decision was not Wednesbury unreasonable.  To allow the challenge to proceed despite such an inordinate and unexplained delay would create serious prejudice to the proposed Respondent and the administration.  The application for leave to apply for judicial review was made out of time and there is no prospect that an application for extension of time will be allowed.  Accordingly, the Court refused the application for leave to apply for judicial review.”

Appeal to this Court

12.On 28 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that the Board failed to make sufficient inquiries into country of origin conditions, adopted a passive approach in contravention of the required high standards of fairness, failed to take into account relevant considerations, and took into account irrelevant considerations.  The applicant stated that the Board specifically failed to give due regard to the fact that his life was in danger from his enemies if he were to return to his country, that he had as a result been placed in severe mental distress, and that he could not get protection from the authorities.

13.Despite the directions issued by the Registrar of Civil Appeals on 29 June 2021, the applicant has failed to lodge any written submissions for his appeal.  In accordance with the directions, the hearing date is therefore vacated and this appeal is disposed of on paper without a hearing.

14.It is well established that in an appeal against a refusal of leave to apply for judicial review in non‑refoulement cases, this Court will only examine the decision of the judge below 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 this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

15.The applicant has made general allegations against the Board’s decision without any particulars in support.  He has not identified any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

16.In the present case, the Board rejected the applicant’s claim having regard to the fact that the applicant had not suffered any severe injury, serious harm or severe pain and suffering in India, and that 5 years had elapsed since the events in question, such that the applicant was unlikely to be of interest to those who assaulted him.  Like the Judge, we do not see any reasonably arguable public law grounds for assailing the Board’s decision.

17.There is no error in the Judge’s refusal to grant leave to apply for judicial review.  For these reasons, the appeal is dismissed.

The Applicant, unrepresented, acting in person