A A

CACV 38/2018
B [2018] HKCA 258 B

C IN THE HIGH COURT OF THE C

HONG KONG SPECIAL ADMINISTRATIVE REGION

D D
COURT OF APPEAL
E CIVIL APPEAL NO 38 OF 2018 E
(ON APPEAL FROM HCAL 191 OF 2017)
F --------------------------- F

G BETWEEN G

H HARVINDER SINGH Appellant H

I and I

J J
DIRECTOR OF IMMIGRATION 1st Interested Party

K DEPARTMENT OF JUSTICE 2nd Interested Party K

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Before : Hon Lam VP and Barma JA in Court

M M
Date of Submission : 6 March 2018
N Date of Handing Down Judgment : 7 May 2018 N

O ___________________ O

P
JUDGMENT P
___________________
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Hon Barma JA (giving the Judgment of the Court):

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S 1. This is an appeal against the decision of Deputy High Court S

Judge Bruno Chan dated 30 January 2018 refusing leave to the appellant to
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apply for judicial review. The appellant came from India. He entered
B B
Hong Kong on 13 June 2014 with a permission to remain for 14 days. He
C overstayed and surrendered to the Immigration Department on 22 September C

2014. He lodged a non-refoulement claim on 29 October 2014. The

D D
claim was based on his fear of being harmed or even killed by his granduncle
E and his granduncle’s son over certain land dispute within the family. E

F F
2. By the Notice of Decision dated 19 January 2016, the Director
G of Immigration (“the Director”) decided against the appellant’s claim. The G

Director took the view that, given the low frequency and intensity of the past
H H
ill-treatments, the appellant’s alleged ill-treatment upon return to India
I would not attain a minimum level of severity. The availability of state I

protection and the possibility of internal relocation would also lower the
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perceived risk of harm. The decision covered the BOR 3 risk, the
K persecution risk, and the torture risk. K

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3. The appellant appeal to the Torture Claims Appeal Board (“the
M Board”) against the Director’s decision. After having an oral hearing on M

19 October 2016, the Board dismissed the appeal on 23 December 2016.

N N

O 4. After the dismissal of the appellant’s appeal, the Director O

further assessed the appellant’s BOR 2 risk. By the Notice of Further

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Decision dated 7 March 2017, the Director decided against the appellant.
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5. The appellant appealed to the Board against the Director’s

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further decision. Having considered that the appellant provided no
S additional materials relating to his BOR 2 claim, the Board decided to S

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proceed with the appeal without having an oral hearing. The Board
B B
dismissed the appeal on 25 April 2017.
C C

6. The intended judicial review was in respect of the decision of

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the Board. The Form 86 filed by the appellant on 9 May 2017 did not
E contain any grounds for seeking relief. In his supporting affirmation of the E

same date (together with a 5-page exhibit marked “HS” thereto), the
F F
appellant replied on the following grounds for his intended judicial review:
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(a) He never received the letter from the Immigration Department
H inviting him to submit additional information in respect of his H

BOR 2 claim. (It was however suggested in the exhibit that

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the appellant did receive the letter from the Immigration
Department. Due to the limitation of his language ability, he
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could not understand the letter and, hence, failed to submit any
K additional facts.) K

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(b) The procedure was unfair because, in deciding the possibility L
of internal relocation, the decision makers did not carry out
M sufficient research and inquiry into the COI conditions or to put M

sufficient weight on the information relevant to his case.

N N

7. The appellant did not request for an oral hearing for his
O O
application for leave to apply for judicial review. After summarizing the
P facts and background of the case and giving due consideration to decisions P

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of the Director and of the Board, the judge gave the following reasons in
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refusing leave at [14] – [17] of the CALL-1 Form:
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“14. The letter which the applicant claims to have never
received from the Immigration Department was the one dated
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15 February 2017 referred to in the Director’s Notice of Further
Decision of 7 March 2017, and it is therefore safe to assume that
T even if indeed the applicant did not receive that letter, and high T
standard of fairness requires that he be given the benefit of doubt,
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he would have become aware of his right to submit additional facts

B no later than when he received the Director’s Further Decision B
after 7 March 2017 so that after he lodged his second appeal to the
Board on 13 March 2017, he would have had almost six weeks to
C C
submit whatever additional facts or materials that he thought
would assist his case to the Board before his appeal was dismissed
D on 25 April 2017, and if what he claimed to be additional facts in D
his statement were true, such as his family being constantly
threatened and tortured, his home was burnt, his mother was
E seriously injured and that his cousin sister died from the torture, E
all of which would no doubt be regarded by him as most important
F and crucial to his case, which begs the most obvious question of F
why did he not disclose them to the Board in his appeals when
according to him all of these occurred the year before in his
G statement and hence in 2016? G

15. As a matter of fact, even up to the filing of this application

H H
the applicant still failed to produce any evidence, documentary or
otherwise, to support these bare allegations of his,
I notwithstanding the ample time and opportunities for him to do so I
and no doubt with the assistance of his family back home such as
when his father was able to produce the statement from the village
J head, as the Court of Appeal pointed out in TK v Michael Jenkins J
CACV 286/2011, 21 November 2012, that within reasonable
K
bounds the torture claimant is expected to conduct his own K
investigation and obtain information and materials that it requires
to prove his case. As the matter stands I do not think that the
L applicant has any ground to complain of not having the L
opportunity to do so.
M 16. As for his complaint of unfair procedure in the M
consideration by the Director and the Board of the objective COI
N in finding that internal relocation is available and reasonable for N
him to return to live and work safely in India albeit away from his
home district, again other than a bare general assertion the
O applicant has failed to give any details or particulars in support of O
his argument. Having rigorously examined and scrutinized those
P
COI before the Director and the Board, I am unable to find any P
error or unfairness in the process of their assessment.

Q 17. In conclusion I do not find any ground that shows any error Q
in law or procedural unfairness on the part of the Director or the
Board, or any failure on their part to apply a high standard of
R fairness in their assessment of the applicant’s claim. I am R
therefore not satisfied that his intended application for judicial
S review is reasonably arguable, and accordingly I refuse his leave S
application.”

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8. In the Notice of Appeal of 12 February 2018, the appellant

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advanced the following ground of appeal:
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(1) the judge disregarded the fact that he had no help from lawyer
D or interpreter to help him in his case after the Duty Lawyer D
Service had stopped representing him; and
E E
(2) the judge did not arrange for further submissions, nor did he
F hold any oral hearing so as to enable the appellant to address F

any issue raised by the judge.

G G

9. By his letter dated 14 February 2018, the appellant agreed that

H H
this appeal can be disposed of on paper.
I I

10. The appellant lodged his written submissions on 6 March 2018.

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In addition to repeating the grounds advanced in the Notice of Appeal, the
K appellant also submitted that the process had been procedurally unfair due K

to the lack of legal assistance and of language assistance.

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M 11. As we have repeatedly said, neither the high standard of M

fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7

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HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2
O HKLRD 346 prescribed that a CAT claimant or a claimant for BOR 2 or O

BOR 3 or persecution risks must have an absolute right to free legal

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representation at all stages of the proceedings: Re Zunariyah [2018]
Q HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] Q

HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The appellant
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already had the benefit of legal representation in presenting his case to the
S Director. We do not find anything amiss arising from lack of legal S

representation in the process before the Board.

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12. It is the appellant’s case that, due to his language limitation, he

B B
could not understand the letter from the Immigration Department and so
C failed to submit additional facts in support of his BOR 2 claim. We note C

however that he did not make any complaint of the lack of language
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assistance in his appeal to the Board in respect of his BOR 2 claim. The
E complaint was only made for the first time in his application for leave to E

apply for judicial review. We also note that his Form 86 and supporting
F F
affirmations were written in English, which indicates either that he is
G familiar with the English language or that he has access to, and able to seek, G

such assistance as he needs. It is further noted that there was no

H H
interpretation clause in the affirmations he made, which indicates that he is
I able to understand the English language without interpretation. For these I

reasons, we do not accept that the appellant’s complaint of the lack of

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language assistance has any merits.
K K

13. On the facts of this case, we cannot actually see any additional
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basis for advancing a claim under BOR 2 other than those relied upon in
M respect of the BOR 3 risk, the torture risk, and the persecution risk. M

N N
14. Under O.53, r.3(3) of the Rules of the High Court, Cap. 4A, a
O judge may deal with the application for leave to apply for judicial review O

without a hearing. The mere absence of an oral hearing does not constitute
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a ground of appeal. As we have mentioned, the appellant did not request
Q for an oral hearing in his application. By making his affirmation with a Q

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5-page exhibit, the appellant had already had the opportunity to advance his
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case in full details. We do not find anything amiss in the judge’s decision
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to proceed with the application without an oral hearing.

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15. Having read the full decision of the Board, we are of the view
B B
that it was perfectly open to the Board to come to its conclusion that the
C appellant was not a truthful witness. As such, there is no substantial C

ground for believing that the appellant would face a real risk of being subject
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to ill-treatments which meet the high threshold as required by law: see
E Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174]. E

Nor can we find any procedural irregularity or error of law in the Director’s
F F
and the Board’s conclusion regarding the possibility of internal relocation.
G There is no reasonably arguable basis to challenge the fairness of the process. G

Determination of the merits of a non-refoulement claim is essentially a

H H
matter for the Director and for the Board, not for the court. We agree with
I the judge that leave to apply for judicial review should be refused. I

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16. For these reasons, we do not see any prospect of success in the
K intended application for judicial review. We dismiss the appeal K

accordingly.
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(M H Lam) (Aarif Barma)

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Vice-President Justice of Appeal
Q Q

The appellant, acting in person

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