RAJ NARAYAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 153/2019

[2019] HKCA 889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 153 OF 2019

(ON APPEAL FROM HCAL 679 OF 2018)

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J U D G M E N T

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

Introduction

1.1.  This is an appeal by Mr Raj Narayan (“the appellant”) from an order of DHCJ Woodcock (“the Judge”) given on 21 March 2019 dismissing his application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in the Judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)[1].

1.2.  The appellant had applied to the Judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 13 April 2018 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of India born in Uttar Pradesh, India.  He worked as a plumber.  He had previously come to Hong Kong in 2007 and was repatriated to India as his torture claim was refused.  On 10 December 2014, the appellant entered Hong Kong from Shenzhen illegally and was arrested by the police on 22 July 2015 as an illegal immigrant.  He raised his claim for non-refoulement on 24 July 2015.  On 7 June 2017, he lodged his non-refoulement claim form. 

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what he alleged was that:

-  The appellant was a member of Bahujan Smaj Party (“BSP”) but he did not hold any official position.

-  One day in April 2007, the appellant and some 30 to 50 people of the BSP were doing publicity work.  About 7 to 8 people of the Samajwadi Party (“SP”) quarrelled with them.  The appellant together with and 2 other people of the BSP hit a man from SP on the head.  Later, the appellant learnt that the man from SP was a senior leader AY.  So he moved to stay with his friend at another village.

-  In around July 2007, AY together with 10 to 11 people took revenge on the appellant and attacked him.  Although the appellant claimed some of them were armed with pistols and knives, he managed to run away although he was hit in the leg.  He did not seek medical treatment as he was afraid that they would know his whereabouts. 

-  The second attack took place in November 2007 at a place about 5 kilometres from his home village.  AY together with 7 to 8 people armed with wooden sticks and long knives attacked the appellant.  He was hit by AY on his back but he managed to escape.  He did not seek any medical treatment as his injury was not serious.  Since then, the appellant received messages from AY threatening to kill him.

-  The appellant left India on 24 December 2007 and arrived in Hong Kong on 26 December 2007.  He was sent back to India.  On 18 February 2008, he entered Hong Kong illegally and was repatriated to India on 9 March 2011 after his torture claim was refused on 31 December 2010.

-  After returning to India, he hid at his home for 3 months. He alleged that the SP people still searched for him.  Subsequently, he left for Delhi in around June or July 2011 and stayed in his friend’s house for 1 year.  Afterwards, he moved to stay with another friend in Mumbai for another year.  He continued to work as a plumber during these 2 years.

-  The appellant learnt from the newspaper that a former BSP leader and his friend as well as some bodyguards were suspected to have been shot dead by SP people in July 2013.  He was scared and left his country and entered Hong Kong illegally again in December 2014.  He did not encounter any difficulties leaving the country.

-  The appellant kept contact with his parents and was told that SP people were still searching for him even though the SP lost the election and was not very powerful in India.

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.  What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.  “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.  “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.  What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decision

6.  The Director’s representative had an interview with the appellant.  Legal assistance was available for the appellant to prepare his claim.  After the interview, the Director considered and rejected the appellant’s claims under torture risk, BOR 3 risk, BOR 2 risk and persecution risk (see para. 12 of the Notice of Decision), for reasons set out in a decision given on 22 August 2017.

The TCAB’s Decision

7.1.  The appellant then appealed to the TCAB which held a hearing at which the appellant was present.     

7.2.  After examining his claims under torture risk (para. 31), BOR 3 risk (paras. 35-41), persecution risk (para.45) and BOR 2 risk (para.47), the TCAB dismissed the appellant’s appeal for the reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, the TCAB found that the appellant’s claim was no more than a bare assertion; although the TCAB did not find him incredible, it noted that he had no documentary evidence in support of his claim.  The TCAB did not accept that after so many years and after previous opportunities when he could have been more seriously harmed, the SP party would still have any interest in the appellant.  The appellant was able to live and work in Delhi and Mumbai safely, and he was also able to leave his country without encountering any problems. 

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The grounds he relied upon in his affirmation were summarised in the Judge’s decision. 

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge.  As mentioned earlier, the Judge refused leave for reasons set out in her Decision, in particular,

“13. The adjudicator analysed the material, claim as well as the evidence and validated his findings. The applicant’s complaints against him and the procedure undertaken are not made out. I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application. He puts forward several grounds and I find them all to be without merit and substance.

14. In the first ground, the applicant suggests that the appeal bundle was served only days before the appeal hearing and because it was in English, he could not afford to have it translated. At the appeal hearing himself he was therefore confused and did not have a full understanding of the proceedings however, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter present at the hearing to interpret his previous evidence, statements and the director’s submissions that were in the appeal bundle. In any event, he made this application and affirmation in English which casts further doubt on this ground. Although I do accept he has said that he had assistance in writing this affirmation. I nonetheless, find no merit in this ground.

15. In the applicant’s second ground, he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh (2018) HKCA 246 at para 13 said that,

‘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. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.’

In any event, the adjudicator found that although the evidence from the applicant was no more than bare assertions, he did not go so far as to find him an unreliable witness. There is no merit in this ground.

16. The third ground is a complaint that the adjudicator relied on COI information that was not officially recognised, hearsay and out‑of‑date. However, there are no particulars supplied by the applicant to support this ground. Having considered the COI referred to by the adjudicator, it is obviously reliable and up‑to‑date. I find no merit in this ground.

17. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

18. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & Anor (2007) 10 HKCFAR 676, paras 14 to 17. I refuse leave to apply for judicial review.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 27 March 2019, the appellant appealed the Judge’s order to this court.  He stated the following in his affirmation filed on the same date:

(1)  The [judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2)  The [judge] failed to provide detailed reasons in support of her decision.

Legal Principles

11.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.  The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin information.

11.2.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and I will not repeat them here.

11.3.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was directedby the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal. The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

13.1.  The appellant does not make out his first ground of appeal as the issue of state acquiescence or involvement was not material to his application for judicial review before the Judge, and in any event, even on his own case before the TCAB, there was no allegation of state acquiescence as he had not reported the alleged attacks to the police or any other authorities.

13.2.  In relation to the second ground of appeal, the Judge had discussed and analyzed the grounds of judicial review relied upon by the appellant in his affirmation dated 19 April 2018 (paras. 13-18 of the Judge’s Decision).  In any event, the appellant’s allegations had already been thoroughly examined by the TCAB on the facts and the Judge was correct in holding that the TCAB was entitled to make the findings that it did. 

14.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.