KAMAL KUMAR v. TORTURE CLAIMS APPEAL BOARD

CACV 363/2018

[2018] HKCA 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 363 OF 2018

(ON APPEAL FROM HCAL 657/2017)

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J U D G M E N T

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

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock, given on 25 July 2018, by which she refused leave to the applicant to apply for judicial review (‘the Judge’ and ‘the Judge’s Decision’).

2.  The applicant having failed to file his skeleton arguments according to the directions of the Registrar of Civil Appeal, the same directions having been made clear in a letter to the applicant dated 4 September 2018, the hearing date of this appeal, namely 13 November 2018, was vacated and this Court will consider the appeal on paper.

BACKGROUND

3.  The applicant is an India national who allegedly entered Hong Kong by ferry from Macau on 26 February 2014, and who lodged his non-refoulement claim form (‘NCF’) on 15 April 2014.

4.  The basis of the applicant’s claim is that, if he were to return to India, he would be harmed or even killed by a police officer, Gurbachan Singh (‘GS’) because he is unable to repay the compensation demanded by GS for his son, Balwinder Singh (‘BS’), who lost his leg in a traffic accident in which the applicant was involved.

5.  The relevant facts as alleged by the applicant can be summarized as follows :

The applicant was driving his taxi home. He injured BS.  GS assaulted the applicant and demanded compensation from him.  GS also took the applicant to a police station to make a report on him.  Whilst in custody, the applicant was assaulted by the local police.  Even upon release, he continued to be threatened by GS.  The applicant tried to report GS but the police told him to go away. On one occasion, the applicant took a blow from GS on the head, fainted and had his taxi taken away.  On another occasion, whilst he was driving home, the applicant was chased by, and shot at, by people on a number of motorcycles. The applicant’s vehicle fell into a ditch and, for a period, he was hospitalized.  The applicant was undisturbed by GS during his hospitalization, and the time when he was recovering at home.  The applicant relocated to a different place, and undertook a new driving job, only later to encounter two men approaching him asking him if he knew the person in a photograph.  The person was the applicant without the beard he was then wearing.  The applicant decided to flee to Hong Kong.

On 5 November 2015, at the conclusion of the evidence before the Torture Claims Appeal Board (see later), when he was asked if he had anything to add, the applicant alleged for the first time that his brother had been killed by people seeking the applicant’s whereabouts.

THE DIRECTOR’S DECISIONS

6.  The Director of Immigration decided against the applicant’s torture claim on 12 September 2014 (‘the Director’ and ‘the Director’s Decision).  The decision covered the applicant’s right under Article 3 (right against torture and cruel and inhuman treatment) under the Bill of Rights and other statutory and convention rights against torture and persecution.

7.  By a further decision dated 12 January 2017, the Director decided against the applicant regarding his right under Article 2 (right to life) of the Bill of Rights (‘the Director’s Further Decision’).

THE BOARD’S DECISION

8.  The applicant appealed the Director’s Decision to the Torture Claims Appeal Board which, after holding three hearings on 31 August 2015, 7 September 2015 and 5 November 2015, dismissed the applicant’s appeal on 19 August 2016 (‘the Board’ and ‘the Board’s Decision’).  [We note in the Appeal Bundle filed by the applicant a decision of the Board dated 25 March 2017.  Although the name of the applicant in that decision was the same as the applicant in this appeal, that decision clearly was in respect of another case.  The correct Board’s Decision of 19 August 2016 was, however, before the Judge which we were able to read from the file in HCL 657/2017.]

9.  The Board’s Decision essentially held that the applicant lacked credibility and that internal relocation within India was possible.  The Board observed that there were significant differences between the contents of a written representation that was signed by him with the assistance of his lawyers and the later accounts of events that were given by him.  Instead of GS threatening and demanding repayment from the applicant, the applicant said it was BS who was threatening and demanding repayment from him.  There was also a discrepancy in the amount demanded.  There was no mention of the police assaulting him.  There was no mention of his taxi being stolen.  There was inconsistency in the number of shots fired at him while he was being chased by people on motorcycles.  More significantly, whilst the applicant had said that he lost control of his car and fell into a ditch, his other version was that he did not lose control and he managed to escape driving his taxi.  Although the applicant claimed that his statement prepared by his lawyer was “rushed”, the Board found that the numerous discrepancies between his different versions cannot be said to be a result of a rushed endeavor in his statement-preparation.  In the applicant’s notice of appeal before the Board, he went so far as to allege that GS had beaten him in the police station, an allegation that was never mentioned in his NCF form nor his record of interview.  Further, the applicant’s record of travel casts further doubt on the applicant.  It was found that one Pradeep Kumar had the same e-ticket airline travel number as the applicant, and he was booked on the same flight as the applicant, sitting in adjacent seats with the applicant.  The applicant alleged however that he only knew Pradeep Kumar when he landed in Macau and not before that.

10.  The Board found that if the applicant could relocate and live somewhere else in India undisturbed, that alone would remove any need for non-refoulement protection.  Although, at the hearing, the applicant gave a different account alleging that he encountered problems at the place where he had relocated, it was found that this version was incredible.

THE JUDGE’S DECISION

11.  After reviewing the Director’s Decision, the Board’s Decision, the applicant’s Form 86 and supporting affirmation with exhibits, the Judge on 25 July 2018 refused to grant an extension of time for leave to judicial review.  The Judge held that the delay itself was enough to dispose of the applicant’s application for extension, but she further considered the merits in the event she was incorrect.

12.  After consideration of the case with rigorous examination and anxious scrutiny, the Judge found that the applicant’s case for extension of time was not made out on the merits.  The applicant’s complaint that he was not legally represented before the Board had no basis, as it cannot be said that that in itself led to procedural unfairness.  The applicant’s complaint that he did not receive a letter from the Director inviting him to supply further documents in support of his right under Article 2 of the Bill of Right had no basis, as it was more likely than not that the applicant did receive the invitation.  It was found that the Director’s absence in the Board’s hearing did not prejudice the applicant. There was an adherence to high standards of fairness.

THIS APPEAL

13.  The applicant filed his Notice of Appeal to the Court of Appeal on 2 August 2018.

14.  It was stated in the Notice of Appeal that :

“ …… the grounds of this appeal are that I can’t go back to my country at this moment. Please help me to stay in Hong Kong until my problem will be solved.”

DISCUSSION

15.  It is pertinent to restate the legal position in Nupur Mst[1] as follows :

“ 14. Before we address the applicant’s case, it is necessary to highlight the following general propositions :

(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 the 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(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 were 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: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) 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). See: Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

16.  The applicant’s bare statement in his Notice of Appeal simply fails to show any error of law or procedural unfairness or irrationality of the Board.

DISPOSAL

17.  It has not been shown that there is any error of law or procedure in the proceedings before the Board or the Director.  There is no reasonably arguable basis to challenge the fairness of the process.  The Judge was correct to refuse to grant leave to apply for judicial review.  There is no prospect of success in the intended application for judicial review and the appeal is dismissed.