RE JARNAIL DASS

CACV 599/2018

[2019] HKCA 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 599 OF 2018

(ON APPEAL FROM HCAL NO. 943 OF 2017)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Campbell-Moffat J (“the Judge”) on 7 December 2018, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 21 January 2019, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 1 April 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged in accordance with the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2216.  We shall not repeat the same here.

4.  Briefly stated, the applicant is an Indian national.  He entered Hong Kong on the strength of his passport on 21 July 2014 but was refused permission to land and was repatriated to India.  On 11 December 2014, he travelled to Hong Kong again and was allowed air-sea transit at the Hong Kong airport to go to the Mainland on the same day.  On 16 December 2014, he sneaked into Hong Kong from Mainland and was arrested by the police on 10 March 2015.  On 4 February 2016, he lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by the members of Indian National Congress (“INC”) if he were to be returned to India because he had left INC and joined the Bharatiya Janata Party (“BJP”) after injuring a member of INC, Khuspreet Singh (“KS”).

5.  By a Notice of Decision dated 17 May 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 25 January 2017, the Director rejected his claim on BOR 2 risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 6 February 2017, 10 and 11 August 2017, the Board dismissed the appeal on 12 October 2017.  The Board found that there were implausibility and inconsistencies in the applicant’s account of how he injured KS seriously and how he was targeted and pursued by the members of INC.  Further, the applicant failed to file his non-refoulement claim more than one year after he came to Hong Kong and after arrested by the police and his conduct was wholly inconsistent with the suggestion that he was a genuine asylum seeker.  The Board further found that state protection was available and internal relocation would also be a viable option for the applicant. With the aforesaid reasons, the Board found that the applicant had failed to establish his claims for non-refoulement protection under all applicable grounds.

7.  On 23 November 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  In the supporting affirmation filed on the same day, the applicant put forward the following grounds to advance his intended challenge:

“My life is in danger in India. If I (was) sent back to India, I might get killed (by) other party. I humbly request that please kindly carefully look into my case and kindly allow my application for leave and enable me to stay in Hong Kong. I don’t want to get killed. I feel safe in Hong Kong.”

The Judge’s decision

8.  On 7 December 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [9] – [12] for her refusal to grant leave:

“ Leave to apply for judicial review

9. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. He has not complained of any procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The Appeal

9.  In the Notice of Appeal filed on 21 December 2018, the applicant set out following grounds of appeal :

“My life is in danger. I had been involved in false cases for what I did not do. The cases against me is due to the other political party. They have strong hold on the government. If I been sent (sic) back, I might get killed or beaten by the police or killed in encounter. No justice will be provided to me in my county. I might be get killed. I prefer to die in Hong Kong rather than back in India.”

Discussion

10.  In this appeal, this Court will only examine the decision of the Judge in light of the grounds advanced by the applicant.  The ground of appeal as set out in Notice of Appeal did not identify any error of the Judge’s decision and is not a viable ground of appeal.  The appeal plainly has no prospect of success.

11.  In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the Judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonable arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter of the Board, not for the Court.  We do not see any reasonable basis to upset the decision of the Board by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.