BANDELA VENU v. TORTURE CLAIMS APPEAL BOARD

CACV 158/2022, [2023] HKCA 739

On Appeal From[2022] HKCFI 1073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 158 OF 2022

(ON APPEAL FROM HCAL NO 346 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 13 April 2022[1] refusing 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 (“Board”)  dated 18 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 28 March 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is an Indian national.  He last arrived in Hong Kong when he apparently entered Hong Kong illegally in March 2008.  He was arrested by police on 22 March 2008 and was transferred to the Immigration Department.  He raised a non-refoulement claim on 4 April 2008.

3.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his creditors, including his ex-wife’s brother and uncles, for failure to repay his loans.  He also fears that in the event of refoulement, he would be harmed by a former rival candidate in a prior village council election in which they both lost.  The factual background was set out at paragraphs 29 to 52 of the Board’s decision.

4.  By notice of decision dated 28 March 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  Those applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 15 October 2018, during which the applicant gave oral testimony and answered questions from the Board.  During the hearing, the Board drew the applicant’s attention to a number of material inconsistencies between his testimony at the hearing and the evidence he gave to the Director, to which the applicant responded that he could not remember the exact dates and time periods of events.  Those inconsistencies concerned the timing of some of the loans, the amount of the principal and interest owed, and the number of assaults by some of the creditors took place.  The Board found it difficult to believe that the applicant could not recall such central details.  As such, the Board found that the applicant was not a witness of truth and that his claims for protection were not credible.

6.  The Board concluded that there was no real risk of harm in the event of refoulement.  Accordingly, in its written decision dated 18 January 2019, the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

7.  On 8 February 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  He did not state any ground in the Form 86.  In his supporting affirmation, he only stated that the Immigration Department disregarded his dangerous situation.

8.  Following consideration of the documents only, on 13 April 2022 the Judge refused to grant leave to apply for judicial review, for reasons set out at [12] – [15] of the Form CALL-1 as follows:

“ 12. 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.

13. 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 53 - 73 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

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

15.  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 25 April 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal is that he cannot return to his country because his life is not safe there, and he asks for help to stay in Hong Kong to save his life. However, he did not identify any specific errors by the Judge or the Board.

10.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

11.  The applicant lodged his written submissions on appeal on 6 May 2022 in which he set out certain general legal principles and quoted passages from case authorities, and asserted that the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  However, he did not specify or provide any details as to how the Board failed to properly assess his credibility.

12.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

13.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

14.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to its adverse finding on his credibility, and found that there was no real risk of harm in the event of refoulement.  The court will not interfere with such assessments unless they are reversible on public law grounds.

15.  The applicant has not identified any specific errors or concerns as regards the Board’s assessment of credibility.  There are no public law grounds for reversing or interfering with the Board’s assessment.

16.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

17.  For these reasons, the appeal is dismissed.