VU THI NHUNG v. TORTURE CLAIMS APPEAL BOARD

CACV 67/2021

[2021] HKCA 1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 67 OF 2021

(ON APPEAL FROM HCAL NO 860 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  On 9 February 2021, DHCJ Bruno Chan (“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 13 April 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 17 February 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.  (It should be noted that after filing his application to the court in 2018, the applicant had withdrawn it in 2019, only to apply to “re-open” it in 2020, which the Judge permitted him to do).

2.  On 19 February 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.  On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.  As it is appropriate to do so, we have proceeded to consider the appeal on paper without an oral hearing.

Background

3.  The Applicant is a national of India. He arrived in Hong Kong on 8 September 2014 with permission to remain as a visitor up to 17 September 2014.  He overstayed and was arrested by police on 7 October 2014.  On 9 October 2014, he raised a non-refoulement claim by way of written representation on the basis that if he returned to India he would be harmed or killed by (i)  his paternal uncle over a land dispute and (ii)  by his girlfriend’s family who were against their relationship.  The factual background of this case was succinctly summarized by the Judge in [2] – [6] of the Form CALL-1 ([2021] HKCFI 340).

4.  By a Notice of Decision dated 17 February 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

5.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 29 January 2018 and by its decision dated 13 April 2018, the Board dismissed the appeal.  At the hearing, the applicant declined to give evidence [20].  For the reasons set out in [21] – [46] of the Board’s decision, his evidence was found to have based on illogical deductions and hearsay statements and thus was considered as not credible.  The Board further found that the applicant did not raise his non-refoulement claim until he was arrested by the police and his conduct was inconsistent with his being a genuine asylum seeker.  Relevant Country of Origin information (“COI”)  suggested reasonable state protection is available and internal relocation is a viable option [47] – [50].  For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds.

Decision of the court below

6.  On 17 May 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions and he advanced the following grounds of relief (as duly summarized by the Judge at [11] of the Form Call-1): 

(1)  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)  The Director failed to take into account or give proper weight to the fact that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state should be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

(3)  The Director failed to consider or give sufficient weight to those evidence listed in the relevant COI which supported the applicant’s aversions that the police in India would not be able to protect him.

(4)  The Director relied on relevant COI which suited his pre-conceived conclusion which was a clear case of unfair attitude which in itself is enough to render his decision void.

(5)  The Director failed to consider the fact that corruption and incompetency of the administration in India is still a very serious problem as reported by various human rights organizations which stated testament to the applicant’s assertions.

(6)  The Director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered as unreasonable in the scope of public law.

(7)  The Adjudicator failed to make sufficient enquiry before finalizing the determination.

(8)  The Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

7.  As noted above, before his application could be processed by the court, on 27 March 2019 the applicant filed an affirmation requesting to withdraw his application as he wanted to return to India.  His application for withdrawal was granted by the court.  However, on 9 July 2020, the applicant issued a summons applying to “re-open” his leave application as he was informed by his family that his problems at home were unresolved and it would be dangerous for him to return to India. 

8.  The applicant attended an oral hearing on 14 October 2020 for his application to reinstate his leave application and his application for leave to apply for judicial review.  By the decision dated 9 February 2021, the Judge allowed the applicant to reinstate and proceed with his leave application.  Nonetheless, the Judge refused to grant him leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [18] of the Form CALL-1 as follows:

“14. However, those grounds as proposed above for his intended challenge are 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 was state acquiescence relevant to his claim, or how did the Director or the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to make proper or sufficient enquiries or apply high standards of fairness in their determination of his claim, or how did the Adjudicator fail to give him sufficient opportunity to provide the relevant evidence or information in support of his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 19 – 24 of its decision after he failed to clarify or explain those inconsistencies and discrepancies in his claim as identified in the decision despite being invited and advised by the Adjudicator for him to do so. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not 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.”

Appeal to this Court

9.  On 19 February 2021, the applicant filed his Notice of Appeal against the Judge’s decision on the following grounds:

“I am not satisfied with the decision because its away form (sic)  facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.”

10.  In compliance with the Court’s directions of 15 April 2021, the applicant lodged his written submissions on 28 April 2021.  In his written submissions, he advanced the following grounds:

(1)  His life will become worse if refouled and he was not satisfied with all the decisions made in his case.

(2)  The points in his case were ignored and the decisions were not transparent.  The situation of his country is different from what the decision-makers might think, and it is hard for him to live and stand in front of his enemies.

(3)  It is impossible for him to go back to work and even if he files a report to the police, the police would just inform those powerful people of the same.

(4)  Torture and deaths are common in police custody in India and the police would just give support to the rich and powerful people.  It is difficult to get justice in such a corrupt environment.

(5)  It was impossible for him to go back to India at the present stage because of his enemies and he urged the court to understand his problem and let him stay in Hong Kong until his problem is solved.  

Legal principles

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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 on appeal, which operates as a re-hearing, 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.  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.  The applicant did not in his Notice of Appeal and written submissions provide any ground of appeal against the Judge’s decision or identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.  

13.  His complaint that the decisions made against him were “away from facts and reality” was a baseless and general accusation without particulars or elaboration, and it is not a valid ground of appeal: 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. 

14.  Nor can he validly complain of lack of transparency in the decisions.  It is apparent from the Board’s decision that the Board had carefully set out the background of the applicant’s case in detail and given its assessment of and reasons for rejecting his claim.  The Judge had also thoroughly set out his reasons for refusing leave to apply for judicial review.   

15.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

16.  For the above reasons, this appeal is dismissed.