RE TARUN KUMAR

CACV 404/2021

[2022] HKCA 285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 404 OF 2021

(ON APPEAL FROM HCAL 2664/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 12 August 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against (i)  the decision of the Director of Immigration (“the Director”)  dated 9 January 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”); and (ii)  the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 5 November 2018 (“the Board’s Decision”)  dismissing the applicant’s appeal against the Director’s Decision.

Background

2.  The applicant is a national of India.  He last arrived in Hong Kong on 20 March 2013 and was permitted to remain as a visitor until 3 April 2013.  The applicant overstayed and was arrested by the police for overstaying on 17 April 2013.  Thereafter, he lodged a non-refoulement claim on 7 April 2014.   

3.  The applicant’s claim was based on a fear of being harmed or killed by his creditor upon return to India.  The details of the applicant’s claim have been summarised by the Judge at [2] to [5] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 9 January 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board.  After a hearing on 12 September 2018, the Board dismissed the appeal on 5 November 2018 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The inconsistencies between the applicant’s oral and written evidence led the Board to conclude that his claims were not credible.  The Board found that there was no real risk of the applicant being harmed if he were to return to India.

The Judge’s decision

6.  The applicant filed a Form 86 on 23 November 2018 seeking to judicially review both the Director’s and the Board’s Decisions and outlined, in gist, the following grounds:

(1)  the Director and the Board reached their Decisions wrongly, and they were unreasonable and unfair;

(2)  the Board failed to give him sufficient time to adduce relevant evidence;

(3)  the Director’s Decision was Wednesbury unreasonable.

7.  In the applicant’s supporting affirmation, he stated that he was not in a position to adduce any supporting documents but would do so upon his release from Castle Peak Bay Immigration Centre.

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [11] to [17] of the CALL-1 Form:

“11.  On 23 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

  (1)  that the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim as unfair and unreasonable in failing to give him sufficient time and chance to arrange relevant evidence for his claim as well as his appeal;

  (2)  that there was an unfair attitude shown by the Director which is in itself enough to render his decision void as he failed to recognize the fact that corruption and incompetency of the administration of the Applicant’s home country is still a very serious problem as various human rights organizations have complied reports which stated testament with the Applicant’s assertion; and

  (3)  that the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward by the Applicant.  

12.  These are however 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 did they reach their decisions wrongly or unfairly or to apply high standards of fairness in assessing his claim or appeal, while his complaint of not being given sufficient time and opportunity to provide evidence in support of his claim or appeal is plainly and factually incorrect as he was legally represented by DLS in his process before the Director and during his screening interviews before an immigration officer, while he was also able to present his case and submissions fully and properly with the assistance of an interpreter during his appeal hearing before the Board when he never raised any issue of insufficient time or opportunity to provide further evidence in support of his claim, and that even now in the present application that he has not provided any further evidence despite indicating his intention to do so at the time of the filing of his Form 86 or to seek further time to enable him to do so. As such I do not find any of these grounds of the Applicant reasonably arguable for his intended challenge.

13.  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 PushpaKumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  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 55 – 69 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 irrationality 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.

15.  Furthermore, the fact is that it has been established by the Director in his 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, 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.

16.  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.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 23 August 2021, the applicant stated:

“The High Court failed to show any cause for dismisse (sic) of my leave, the High Court judge is on the base of COI which is far difference of practical life.”

10.  The applicant did not request an oral hearing and consented to the appeal to be disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

11.  The applicant lodged written submissions on 31 August 2021, in which he repeated the basis of his fear of returning to India, and requested that this court “grant [his] leave and quash the order of the High Court”.

Discussion

12.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening. 

13.  The applicant has provided no particulars as to any respects in which the Director or the Board were unreasonable or unfair in reaching their Decisions, or how such Decisions could be said to be Wednesbury unreasonable.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  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, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was correct to do so.

15.  In any event, the grounds advanced by the applicant are vague and lack particulars, and should be dismissed for this reason also.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.