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Re Waryam Singh

Judgment Cited authorities 21 Cited in 1 Precedent Map Related
Vincent
Judgment Date24 September 2018
Neutral Citation[2018] HKCA 633
Year2018
Judgement NumberCACV177/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV177/2018 RE WARYAM SINGH

CACV 177/2018

[2018] HKCA 633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 177 OF 2018

(ON APPEAL FROM HCAL 805/2017)

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RE: WARYAM SINGH Applicant

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Before: Hon Yuen JA and Barma JA in Court
Date of Hearing: 14 September 2018
Date of Handing Down Judgment: 24 September 2018

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J U D G M E N T

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

1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 11 May 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 19 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 18 October 2016 rejecting the applicant’s non-refoulement claim.

Background

2. The applicant is a national of India. He entered Hong Kong on 4 November 2013 as a visitor and he surrendered to the Immigration Department on 27 November 2013. He lodged a non-refoulement claim on 7 March 2014.

3. The applicant’s claim was based on a threat from a man identified as SL. According to the applicant, SL and the applicant’s father had a land dispute. In around 2013, SL threatened to kill the applicant. Concerned for his safety, he decided to flee to Hong Kong.

4. By a Notice of Decision dated 18 October 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and torture risk[4].

5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 7 August 2017, the Board dismissed the appeal on 19 October 2017 (“Board’s Decision”).

6. At [27] of the Board’s Decision, the Board found that the threat from SL were just hollow threats. The Board was also satisfied at [28] that state protection was available for the applicant.

The deputy judge’s decision

7. The applicant filed a form 86 on 25 October 2017. The form 86 contained no ground for seeking relief.

8. In the affirmation in support of the leave application dated 25 October 2017, the applicant advanced the following grounds for judicial review:

(1) lack of legal representation in his appeal to the Board;

(2) lack of legal assistance in translating his NCF for him to ascertain whether the interpreter had translated the basis of his claim properly which could potentially lead to injustice;

(3) wrongful exercise of case management power in rejecting his claim on his credibility and by giving undue weight to COI as to the effectiveness of law enforcement and avenues for justice in India; and

(4) lack of fair hearing in not requiring the attendance of the Director in his appeal hearing.

9. 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 to apply for judicial review. The judge gave the following reasons at paragraphs 10 to 17 of the CALL-1 form:

“10. For his complaint in ground (1) of no legal representation provided for him in his appeal to the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: 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 Zafar Muazam [2018] HKCA 176.

11. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal before the Board and to answer questions put to him by the adjudicator without any difficulty. I do not find anything amiss arising from the lack of legal representation in the appeal process, and I do not think this ground is reasonably arguable.

12. Regarding his complaint in ground (2) of not being provided a translation of his NCF so that he could find out if the interpreter had been translating the basis of his claim properly, it is clear that the NCF was completed on his instruction with legal representation from the Duty Lawyer Service, and that he was assisted by a proper interpreter at his appeal hearing, hence in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted, I find this ground of his simply speculative and without any merit.

13. As for his ground (3) in which he complains that the Board has no reasonable basis for rejecting his credibility, apart from the well-established principle that the evaluation of evidence is essentially a matter for the Director and the Board who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision makers, the fact is that in this case the credibility of the applicant was in the main not an issue as the adjudicator clearly accepted that his evidence was generally consistent with his claims previously made to the Director, as it was so stated in paragraphs 24 – 28 of the decision. I therefore fail to see any basis for any complaint against the...

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1 cases
  • Re Waryam Singh
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 30 November 2018
    ...(Maria Yuen) (Carlye Chu) (Aarif Barma) Justice of Appeal Justice of Appeal Justice of Appeal The applicant acting in person [1] See [2018] HKCA 633 ...

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