RE SANDHU SUKHJINDER SINGH

CACV 156/2020

[2020] HKCA 935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 156 OF 2020

(ON APPEAL FROM HCAL 2666/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 29 May 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 29 October 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 29 May 2018 rejecting the applicant’s non-refoulement claim.

2.  On 8 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  He entered Hong Kong illegally on 30 January 2016.  He was then arrested by police.  The applicant lodged his non-refoulement claim on 3 February 2016.

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by the family of his girlfriend Harmeet Kaur, as they disapproved of his relationship with her.  The factual background was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2020] HKCFI 971).

5.  By a notice of decision dated 29 May 2018, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. 

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 7 September 2018.  The Board found that after the applicant had stopped contacting Harmeet her family stopped harassing him. Thus the Board considered that there is no reason why the applicant should still fear for his own safety.  On that basis, the Board concluded that there was no torture risk, no BOR2 risk, and no BOR3 risk.  The Board also concluded there is no persecution risk as the matter involves a private dispute with Harmeet’s family and considered that internal relocation was viable.  Thus the Board dismissed the applicant’s appeal on 29 October 2018 on all the applicable grounds.

Decision of the court below

7.  On 23 November 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  His grounds for judicial review, as stated in his Form 86, were as follows:

(1)  The Board’s decision was wrong, unreasonable and unfair; the right to life must be protected; and the Board failed to give the applicant sufficient time and chance to arrange relevant evidence;

(2)  In another case, an unsuccessful claimant who was refouled from Hong Kong to his home country was killed upon arrival;

(3)  Corruption and incompetenc in his country’s administration is very serious;

(4)  Human rights reports are consistent with the applicant’s assertions.

8.  Following a hearing on 25 July 2019 at which the applicant appeared in person, on 29 May 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [19] of the Form CALL-1 ([2020] HKCFI 971, HCAL 2666/2018) as follows:

“ 14. The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decisions to him. His friend had assisted him with the hearing bundle and the Board’s Decision.

15. The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14.

‘ 13. 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 makers….

14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.’

16. Ground (1) fails as it is only his opinion, which was not supported by any evidence.

17. Ground (2) fails too because there is no evidence to show how the example mentioned happened. His case has to be considered separately and independently.

18. Ground (3) situations are set out in the Country of Origin Information (“COI”), which the Board had considered. The COI had also said that India provided state protection to its citizens. There is no evidence to show that the government was involved in his case. This ground does not sustain.

19. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

Appeal to this Court

9.  On 8 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which his stated grounds of appeal were:

(1)  the Director failed to appreciate or give proper weight to state acquiescence in this case, leading to an unfair result;

(2)  the Director, the Board and the Court failed to take into account or such argument, or the Director failed to give sufficient weight to such argument before reaching his decision;

(3)  the Board failed to make sufficient enquiry before finalizing the determination and stating that the applicant failed to advance any credible evidence to prove material elements of his claim;

(4)  the Board failed to give the applicant sufficient opportunity to bring relevant evidence before the Board, in particular given his limited options to do so when he was in detention;

(5)  the Director referred to relevant COI in a way which suited the Director’s preconceived conclusion, which was unfair and should render the Director’s decision void.

10.  This Court directed on 1 September 2020 that the applicant to lodge his written submissions on appeal by 30 September 2020, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

11.  The applicant failed to lodge any submissions as directed.  The hearing date was vacated and this appeal is processed on paper without an oral hearing.

Legal principles

12.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: 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].  For the purpose of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

13.  The grounds raised by the applicant were not raised before the Judge.  He did not explain for such omission on his part.  As highlighted above, this Court would not entertain these new grounds, particularly when they were patently without merit for the reasons set out below.

14.  In his grounds of appeal, the applicant did not identify any specific errors in the Judge’s decision. 

15.  General assertions were made in respect of the decisions of the Director and the Board.  Without particulars, these general assertions do not constitute 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 for non-refoulement protection based on its finding that Harmeet’s family had stopped harassing him and thus there was no real or substantial risk of harm.  The Board also found that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

17.  In any event, on the facts relied upon by the applicant, no issue of state acquiescence could have possibly arisen.  The threats from Harmeet’s family originated from their private domestic objection to the applicant’s relationship with Harmeet.  There was no suggestion that her family had resorted to gross and violent acts against the applicant which the state authority had knowledge.

18.  The applicant has not raised any proper basis to challenge the Board’s findings that the harassment has ceased or that internal relocation is viable.

19.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

20.  For these reasons, this appeal is dismissed.