RE AMARJEET SINGH

CACV 259/2020

[2020] HKCA 1082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 259 OF 2020

(ON APPEAL FROM HCAL NO. 1772 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) dated 7 July 2020 in HCAL 1772/2018 refusing the application of the applicant for leave to apply for a judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 13 August 2018 in which the Board confirmed the decisions of the Director of Immigration (“the Director”) dated 29 January 2016 and 3 October 2017.

Background

2.  The applicant, a national of India, came to Hong Kong as a visitor on 5 September 2012 and was permitted to stay until 22 September 2012.  He overstayed and was arrested by police on 13 May 2013.  He was referred to the Immigration Department for investigation and on 5 July 2013, he raised a claim under protection on the ground of cruel, inhuman or degrading treatment or punishment (“CIDTP”).  Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, his claim was taken to be a non-refoulement claim and was assessed under the USM. The applicant’s claim was made on the basis that if he were to return to India, he would be harmed or even killed by supporters of Shiromani Akali Dal Party (“SAD”), workers of an opponent bus company.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1363. 

3.  By the Notice of Decision dated 29 January 2016 and Notice of Further Decision dated 3 October 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 21 June 2018, the Board dismissed the appeal on 13 August 2018. In its decision, the Board found that the applicant was an untruthful witness and that there was no objective or reliable evidence to support his case that he was an employee of Raj Bus Company (“RBC”) or that he had risked his personal safety to fight for the business interest of RBC or suffered any assault from RBC by the employees of competing bus company after his resignation. In any event, reasonable state protection is available and internal relocation is a viable and reasonable option.  For the aforesaid reasons, the Board concluded that the applicant had failed to substantiate his non-refoulement claim on all applicable grounds.

The Judge’s decision

5.  On 29 August 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decision of the Board.  As summarised by the Judge in [13] of his decision, the applicant set out in his supporting affirmation that he was not satisfied with the Board’s decision and that he wished to stay in Hong Kong until his problems in India had been solved.  He did not elaborate or particularize what error the Board had committed in its decision.

6.  The Judge heard the application 4 December 2019 and by the CALL-1 Form of 7 July 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, gave the following reasons in refusing leave at [14] – [16] of the CALL-1 Form:

“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.    Those reasons he stated above would not assist him.

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

The Appeal

7.  On 13 July 2020 , the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal is as follows:

“I am not satisfied with the decision because it’s away from 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.”

8.  In compliance with the direction given by Master Tsui on 15 October 2020, the applicant lodged his written submissions on 20 November 2020.  In his written submissions, he advanced the following:

(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 was ignored and the decisions were not transparent.  The situation of his country is much different as the decision-makers might think and it is hard for him to live and stand in front of his enemies.

(3)  Torture and deaths are common in police custody in India and the police would just give support to those who bribe them.

(4)  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.

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

(6)  His life would become worse if he were to return to his home country because of his enemies.

9.  We heard the appeal on 22 December 2020. 

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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 the light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, 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

11.  With the aforesaid legal principles in mind, this Court would focus on the correctness of the Judge’s decision and hence it is incumbent upon the applicant to identify proper grounds to justify our interference with the Judge’s decision.  In the present case, the applicant did not provide any particulars or any discernible grounds for reversing the Judge’s decision in his Notice of Appeal or his written submissions.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20 and Re Aziz Nasir [2019] HKCA 578. 

12.  Here, the Board rejected the applicant’s case on the issue of credibility after careful assessment of his evidence and that the applicant had failed to adduce any evidence to substantiate his case on all the applicable grounds.  The Board was entitled to make the findings, as it did and we found no valid public law ground to intervence.

13.  The matters raised by the applicant in this appeal are only his assertions without concrete factual evidence supporting the same.

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

[1] This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.