RE SUKHDEV SINGH

CACV 262/2020

[2021] HKCA 222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 262 OF 2020

(ON APPEAL FROM HCAL 1784/2018)

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J U D G M E N T

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

Introduction

1.  On 30 June 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 26 July 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 23 January 2017 rejecting the applicant’s non-refoulement claim.

2.  On 13 July 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  He arrived in Hong Kong on 23 September 2014 and was refused permission to land, whereupon he lodged his non-refoulement claim the same day. 

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by Amrik Singh, who was a member of the Shiromani Akali Dal party and was elected as village head.  The applicant and his father had refused Singh when he asked the applicant to support him in the village election and asked the applicant’s father not to compete in the election.  The factual background was succinctly summarized by the Judge at [5] of the Form CALL-1 ([2020] HKCFI 1372).

5.  By notices of decision dated 19 November 2014 and 23 January 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], while the latter covered BOR 2 risk[4]. 

6.  The applicant appealed to the Board against the Director’s decisions.  For the appeal against the Director’s decision dated 19 November 2014, an oral hearing was fixed for 3 March 2015.  However, the applicant did not attend.  The applicant subsequently provided a medical certificate to the Board.  As the certificate did not cover the date of the hearing, the Board did not accept his explanation for his absence and proceeded to determine the appeal in his absence.  The Board found that the applicant’s evidence was unreliable (see paragraphs 30 to 37 of its decision of 30 March 2015) and concluded that there was no real risk of harm.

7.  Thus the Board dismissed the applicant’s appeal against the Director’s decision dated 19 November 2014.

8.  For the appeal against the Director’s decision dated 23 January 2017, the Board decided that it was not necessary to hold a hearing in relation to BOR 2 risk as there were no new materials or evidence to consider and there was nothing which warranted an oral hearing.  The Board relied on its factual findings in its decision of 30 March 2015, and found that there was nothing in the evidence to show that the applicant would be at risk of BOR 2 harm if refouled.

9.  Thus the Board (on 26 July 2018) dismissed the applicant’s appeal against the Director’s decision dated 23 January 2017.

Decision of the court below

10.  On 30 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision of 26 July 2018.  The applicant did not state any grounds for relief in either his Form 86 or his affirmation in support.

11.  Following a hearing on 22 November 2019 at which the applicant attended before the Judge, on 30 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [9] – [15] of the Form CALL-1 ([2020] HKCFI 1372, HCAL 1784/2018) as follows:

“ 9. By the Board’s Decision dated 30 March 2015, the Board rejected his appeal and confirmed the Director’s Decision. The applicant did not apply for leave to apply for judicial review of this Decision. He applied for leave to apply for judicial review of the Board’s Decision dated 26 July 2018 on BOR 2 risk only. However, since the facts of the Decision dated 30 March 2015 equally apply to the Board’s Decision, I shall take into consideration of the Board’s Decision dated 30 March 2015 in my deliberation of the applicant’s case. My analysis below covers both Decisions of the Board.

10. The Board considered the applicant’s evidence and it accepted the Director’s findings. The Board accepted the Director’s treatment of the country of origin information in relation to the applicant’s case [39]; that generic evidence should not apply to the applicant’s case and on that basis found that his case failed to satisfy the elements in the definition of torture [40-51]; that his evidence in relation to BOR 3 risk was unreliable [57]; that state protection was available to the applicant [66]. The above references are found in the Board’s Decision dated 30 March 2015. His claim under BOR 2 risk was not established. See paragraph 24 of the Board’s Decision.

Application for leave to apply for judicial review

11. The applicant filed Form 86 dated 30 August 2018 for leave to apply for judicial review of the Board’s Decision.

12. In his affirmation in support of his application, he did not say what errors the Board had committed in coming to its decision.

DISCUSSION

13. The applicant appeared before me. I explained to him the reasons based upon which the Board did not grant him a hearing before it made its decision dated 30 March 2015. I asked him if he had any comments or complaint on the Board. He said that he had no comment and that he had no explanation for his absence on 3 March 2015.

14. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.”

Appeal to this Court

12.  On 13 July 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which his stated ground of appeal was that his life would be in danger if he were to return to his country.

13.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

14.  This Court directed on 17 December 2020 the applicant to lodge his written submissions on appeal by 14 January 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

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

Legal principles

16.  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

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its findings that the applicant’s evidence was unreliable and that there was no real risk of harm.  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. 

18.  As mentioned, no ground for seeking judicial review was advanced before the Judge and the ground set out in the Notice of Appeal was a mere assertion of his alleged predicament.

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.  There is no reasonably arguable ground to challenge the decision of the Judge.

20.  For these reasons, the appeal of the applicant is dismissed.