RE KHOSA NAVKIRAN SINGH

CACV 454/2019

[2020] HKCA 332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 454 OF 2019

(ON APPEAL FROM HCAL 884 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL-1 dated 25 September 2019 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 2289.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 12 April 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 28 August 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  By a letter dated 30 September 2019, the applicant gave consent to the appeal being heard by a two-member court. 

A.  Background

3.  The applicant is a national of India.  He entered Hong Kong on 5 May 2015 as a visitor but overstayed.  He surrendered to the immigration department on 14 July 2015.  He lodged a non-refoulement claim on 20 November 2015.

4.  The details of the applicant’s claim and his personal background were set out in paragraph 10 of the Director’s Decision, and paragraphs 22-24 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that he would be harmed or killed by his parental uncle, Gursewak Singh (“Gursewak”), due to a land dispute.  The land in dispute belonged to the applicant’s grandfather.  In around 2014, Gursewak came to the applicant’s house to discuss the ownership of the land with the grandfather, the applicant’s father and the applicant.  He demanded the grandfather to transfer the land to him.  However, the grandfather refused and stated that the land would be transferred to the applicant’s father who eventually would pass on to the applicant.  Gursewak was furious and threatened to kill the applicant if the grandfather did not transfer the land to him.  In around 2015, Gursewak again warned to harm the applicant.  The applicant did not sustain any injuries.  In April 2015, two men claimed to be sent by Gursewak came to the applicant’s father’s shop and requested the applicant to convince the grandfather to transfer the land to Gursewak.  Otherwise, they would kill the applicant.  Out of fear, he fled to Hong Kong.  

B.  The Director’s Decision and the Board’s Decision

6.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3] and the BOR2 risk[4] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

7.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 14 February 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

8.  The Board found that the applicant was evasive in giving answers to the Board’s questions.  Further, some of the answers lacked particulars and without clarity.  For example, he conceded that his uncle only threatened him but not his grandfather or other family members.  The Board found this illogical.  Meanwhile, he failed to explain why his uncle, who was a farmer, would be so powerful that the applicant could not relocate to other places.  As a result, the Board found that the applicant was not a credible witness (paragraphs 30-40 of the Board’s Decision).  Further, the Board found that internal relocation was available to the applicant (paragraphs 61-63 of the Board’s Decision).  Thus, the Board dismissed the applicant’s appeal.

C.  The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 21 May 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review were summarized by the Deputy Judge at paragraph 12 of the Deputy Judge’s Decision as follows:

“12.  On 21 May 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(2)  that the Director failed to recognize that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as those in high places in the political circle;

(3)  that the Director failed to take into account that the state should be rendered liable to the applicant by the state officials’ failure to provide reasonable protection for its citizens under the duty of due diligence;

(4)  that the Director failed to properly consider the relevant COI which supported the applicant’s case that the police in India would not be able to protect him;

(5)  that the Director exhibited an unfair attitude by relying only on those COI which suited his preconceived conclusion;

(6)  that the Director failed to recognize that corruption and incompetency of the administration in India was still a very serious problem which supported the applicant’s case;

(7)  that the Director failed to attain the high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law;

(8)  that the adjudicator failed to make sufficient enquiry before finalizing his decision;and

(9)  that the adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence in support of his non-refoulement claim as well as his appeal.”

10.  The Deputy Judge heard the applicant’s leave application on 4 June 2019.  During the hearing, an interpreter was arranged for the applicant.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 13-19 of the Deputy Judge’s Decision:

“13.  These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account relevant COI or make proper enquiry in respect of his claim, or how did they fail to apply high standards of fairness in assessing his claim, or why was state acquiescence relevant to his case, or in what way did the adjudicator fail to give him time or opportunity to provide relevant evidence in support of his claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.  Even in his present application now before me, the applicant did not provide or advance any further evidence or argument in respect of his case which he claimed to have been denied of the opportunity to do so by the adjudicator, and at the oral hearing he confirmed he had nothing further to say to the Court. It is also clearly factually wrong for him to claim of being tortured at the behest or in collusion of the police or law enforcement agencies when even on his own case that he had never been assaulted let alone tortured by anyone. As such I do not find any basis or merits in any of the complaints of the applicant.

15.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the present case, the Board rejected the applicant’s claim based on its adverse finding on his credibility for the detailed analysis and reasons given in paragraphs 30 – 40 of its decision with the benefit of hearing him in evidence and in answer to questions raised of his claim, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the applicant, I am unable to find any reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong:see TK v Jenkins & anor [2013] 1 HKC 526.

18.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

D.  Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 30 September 2019 to appeal the Deputy Judge’s Decision.  There are five grounds of appeal.  All five grounds are those he argued but failed before the Deputy Judge: (1) the Director failed to appreciate or give weight to the presence of state acquiescence; (2) the Director, Adjudicator or the Court failed to take such argument into account; (3) the Adjudicator failed to make sufficient inquiries before finalizing the determination; (4) the Adjudicator failed to give sufficient chance for the applicant to arrange relevant evidence and (5) the Director unfairly referred to the relevant country of origin information which suited his pre-conceived conclusion.

12.  Pursuant to Master Au-Yeung’s directions dated 21 October 2019, the applicant filed his skeleton submissions on 17 January 2020.  In that, he quoted some passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on high standard of fairness and argued that the Adjudicator acted in procedurally unfair manner by not assessing the applicant’s credibility properly.  He also quoted several authorities on Wednesbury unreasonableness but failed to identify to which administrative body he referred.  Finally, he mentioned section 37ZT of Immigration Ordinance on late filing of notice of appeal before the Board.  Again, he did not elaborate how was this relevant to the present appeal.

13.  At this hearing, the applicant confirmed that he had nothing further to add to what had already been set out in the Notice of Appeal and the written submission in support of this appeal.

E.  Discussion

14.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

15.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

18.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

19.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

20.  It is apparent from the grounds of appeal that all the grounds were those advanced but rejected by the Deputy Judge: see [12] and [13]-[18] of the Deputy Judge’s Decision.  None of the grounds of appeal identified any errors with sufficient particularities in the Deputy Judge’s Decision.  On this basis alone, we will dismiss this appeal. 

21.  Further, it was misconceived to challenge the Director’s Decision that the Director failed to give weight to state acquiescence since the applicant himself conceded that his uncle did not have connection with the Indian government but somehow he did not seek help from governmental authorities (paragraphs 10.10 and 10.22 of the Director’s Decision).   In any event, the Director’s Decision was superseded by the Board’s Decision and not susceptible to judicial review: Re: Moshsin Ali [2018] HKCA 549, paragraph 45.  Thus, the grounds related to the Director’s Decision have no merits and are dismissed.

22.  Insofar as the Board’s Decision is concerned, the Board held an oral hearing for the applicant’s claim, which gave the applicant chance to verify and clarify his claim.  In other words, the applicant was given ample and sufficient opportunity to provide support to his claim if he so wished.  As rightly pointed out by the Deputy Judge, the Board dismissed the applicant’s claim on the basis of the lack of credibility and the availability of internal relocation.  Thus, it was again wrong for the applicant to allege that the Board failed to make sufficient inquiries. 

23.  As to the arguments raised in his skeleton submissions, for reasons stated above, we agree with the Deputy Judge that the Board had achieved high standard of fairness in determining the applicant’s claim.  Meanwhile, the applicant failed to explain how the issues of Wednesbury unreasonableness and section 37ZT would assist his appeal.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

24.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.