Rohit Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 422/2024, [2025] HKCA 84

On Appeal From [2024] HKCFI 2398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 422 OF 2024

(ON APPEAL FROM HCAL NO 1825 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 4 October 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 20 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of the Immigration (“the Director”) dated 2 March 2017.

BACKGROUND

2.The Applicant is a national of India. He last arrived in Hong Kong from Thailand with an Indian passport on 28 August 2015, but was refused entry on the same day. With the assistance of a legal representative, he lodged a non-refoulement claim on 29 August 2015. His claim was made on the basis that, if refouled, he would be harmed or killed by members of the Shiromani Akali Dal (“SAD”) because (i) he had refused to leave the Indian National Congress (“INC”), a political party which he supported, to join SAD, and (ii) he had helped promote INC in a local election in March 2015. Details of the Applicant’s claims have been summarised by the Judge at §§4-6 of his decision dated 4 October 2024.

3.By a Notice of Decision dated 11 November 2015 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on the following grounds: risk of torture[1], BOR 3 risk[2], and persecution risk[3].

4.On 25 November 2015, the Applicant appealed the Director’s Decision to the Board. On 27 January 2016, he attended an oral hearing before the Board and gave evidence with language assistance from an interpreter qualified in the Punjabi and English languages. On 26 February 2016, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s 1^st Decision”). In its decision, the Board did not find the Applicant’s claim to be plausible or credible on the evidence before it. The Board found that the alleged election held in March 2015 was not corroborated by any or any reliable evidence, and was contradicted by the fact that the relevant election would only take place once every five years with the last one being held in 2013 (see §§41-43 of the Board’s 1^st Decision). The Board did not find any reliable evidence on the presence of state acquiescence, and rejected the Applicant’s assertion that state protection would not be available to him in India (see §§52, 59 and 60 of the Board’s 1^st Decision). The Board considered that the Applicant had failed to prove any real risk of proscribed harm upon refoulement, and rejected his claim for non-refoulement protection on all applicable grounds other than BOR 2 risk[4].

5.The Director, by a letter dated 1 February 2017, invited the Applicant to submit additional facts which might be relevant to his non-refoulement claim in relation to BOR 2 risk. In the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 2 March 2017 rejected the Applicant’s claim based on BOR 2 risk (“the Director’s Further Decision”).

6.On 18 April 2017, the Applicant appealed the Director’s Further Decision to the Board. On 20 June 2019, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Further Decision (“the Board’s 2^nd Decision”). The Board observed that the Applicant had not submitted any additional materials relating to BOR 2 risk. In the absence of any further evidence in support of the Applicant’s claim based on BOR 2 risk, the Board found that there was no evidence to show the Applicant would be at risk of any harm in relation to BOR 2 risk upon refoulement (see §§24 and 25 of the Board’s 2^nd Decision).

THE JUDGE’S DECISION

7.On 2 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s 2^nd Decision only. No ground of review was given in the Form 86. In his supporting affirmation, the Applicant raised various complaints which the Judge summarised at §17 of his decision, as follows:

“(1) Irrationality: failing to consider state acquiescence; failing to consider relevant information and selectively placing on irrelevant information; failing to consider a consistent system of human rights violations;

(2) Procedural impropriety: insufficient enquiry; failing to provide adequate reasons for its decisions; failing to enquire into the country of origin information (‘COI’); failing to call for psychiatric or psychological report; failing to consider the extended state acquiescence; the adjudicator being a different from the interviewing officer and no proper consideration of internal relocation”

8.The Judge heard the leave application on 31 July 2024, which the Applicant attended with assistance from an interpreter qualified in the Punjabi and English languages. On 4 October 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[18] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[19] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] says his enemies are getting stronger and he asks the Court to review his case.

…

[21] The Board, for the reasons given above, found that the [Applicant’s] claimed risks were unfounded.

[22] Those grounds set out in paragraph 17 do not assist the [Applicant]. They are mostly general and bare assertions without any evidence in support and therefore are not valid reasons[5]. The Board had considered state acquiescence. The [Applicant] did not ask for any psychiatric or psychological report on himself. The adjudicator of the Board has to be a different person other than the immigration officer.

[23] I find that those grounds are not valid to challenge the Board’s Decision.

[24] There is no reason that the Court should interfere with the Board’s finding of the facts.

[25] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

9.Pausing here, it appears that the Judge has mistakenly treated the Board’s 1^st Decision as covering both the Applicant’s appeal against the Director’s Decision and that against the Director’s Further Decision, whereas in fact the Board gave two decisions, one in relation to the Applicant’s appeal against the Director’s Decision and the other in relation to the Applicant’s appeal against the Director’s Further Decision.

THIS APPEAL

10.In his Notice of Appeal filed on 8 October 2024, the Applicant complained about the following matters:

(1)  There was unfairness arising from his language incapacity and lack of legal assistance. Acting as a self-represented litigant, it was difficult for him to present his case before the Judge without proper assistance.

(2)  There was procedural unfairness arising from the lack of other avenue for a non-refoulement claimant wishing to appeal against a decision based purely on credibility. The Judge should have held a hearing in which he could explain the errors in the decision of the Board with the help of an interpreter.

11.In his 5-page written submissions belatedly lodged on 27 December 2024, the Applicant repeated his complaint regarding the lack of language and legal assistance, and further complained that although the Director had not made any adverse finding on his credibility, the Board made such a finding.

12.The Applicant did not appear at the hearing of the present appeal.

DISCUSSION

13.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

14.As earlier mentioned, it appears from the Judgment that the Judge has mistakenly taken the Board’s 1^st Decision as covering the Applicant’s two appeals against the two decisions of the Director, and proceeded to consider the Applicant’s intended judicial review by reference to the reasons appearing in the Board’s 1^st Decision.

15.In view of the mistake made by the Judge as mentioned in paragraph 9 above, we have independently considered the Applicant’s application for leave to apply for judicial review of the Board’s 2^nd Decision.

16.In respect of the Applicant’s complaint of unfairness arising from his alleged language incapacity, the Court has repeatedly held that the high standard of fairness required to be observed in the assessment of a non-refoulement claim does not include the provision of language assistance to a non-refoulement claimant at all times that he/she wishes to have such assistance. The Applicant was assisted by the Duty Lawyer Service in relation to the assessment of his non-refoulement claim by the Director on the grounds of risk of torture, BOR 3 risk and persecution risk, and plainly had language and legal assistance at that stage. He was also assisted by Punjabi interpreters in both the hearing on 27 January 2016 before the Board, and that on 31 July 2024 before the Judge. In this regard, we also note that the Form 86 and the supporting affirmation filed in the court below, as well as his Notice of Appeal and written submissions filed with this Court are all written in English. This indicates that the Applicant is either conversant with English, or has access to language assistance as needed.

17.In respect of the Applicant’s complaint of lack of legal assistance, the Court has also repeatedly held that a non-refoulement claimant is not absolutely entitled to free legal representation at all stages of the proceedings. As mentioned above, the Applicant had free legal assistance in relation to the assessment of his non-refoulement claim by the Director on the grounds of risk of torture, BOR 3 risk, and persecution risk. Although he had no legal representation subsequently, we consider that the assessment of his non-refoulement claim by the Board was thorough and fair overall. In any event, the Applicant has failed to show that he was inhibited from advancing any particular point or ground before the Director or the Board by reason of the alleged lack of legal or language assistance.

18.In respect of the Applicant’s complaint that there was no other avenue to appeal the decision(s) of the Board based purely on credibility, the fact that there is no further right of appeal against a decision of the Board (on whatever ground) is not a valid ground of judicial review. On the other hand, the Applicant is entitled, and has exercised his right, to seek leave to apply for judicial review of the Board’s 2^nd Decision. There is no substance in his complaint of the absence of an oral hearing below. As a matter of fact, the Judge conducted a hearing on 31 July 2024, and the Applicant attended that hearing in person and made oral submissions to the Judge at the hearing.

19.It is immaterial that the Director did not make any adverse finding on his credibility. The Applicant’s appeals to the Board were by way of a re-hearing. The Board was not bound by the Director’s determination in his decisions, and was entitled to reach its own view on the Applicant’s credibility. Further, we do not see why a decision of the Board based on a non-refoulement claimant’s credibility is of itself unfair.

20.Lastly, it is well established that the assessment of evidence, COI, 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 or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the two decisions of the Board is shown in the present case.

21.In conclusion, we consider that the Applicant’s complaints are all devoid of merit. A high standard of fairness has been achieved in the overall process of the determination of the Applicant’s non-refoulement claim.

22.The Applicant’s appeal against the Order has no merit, and is dismissed.

23.If required, the Applicant may make an arrangement with the clerk of this Court for an oral interpretation of this judgment to him in his native language at a mutually convenient time.

The Applicant, acting in person