MANINDER KUMAR v. TORTURE CLIAMS APPEAL BOARD AND ANOTHER

CACV 1/2021

[2021] HKCA 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2021

(ON APPEAL FROM HCAL NO 1068 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

Introduction

1.  On 29 December 2020, Deputy High Court Judge Bruno Chan (“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 8 May 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 24 July 2014 and 8 May 2017 rejecting the applicant’s non-refoulement claim. 

2.  On 4 January 2021, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The Applicant is a national of India who used to live with his family in Jalandhar City, Punjab, India.  He attempted to enter Hong Kong at Airport Control Point on 2 May 2014 and when he was refused entry he raised a non-refoulement claim.  He was at first detained and then released on recognizance pending the determination of his claim. 

4.  The applicant’s claim was made on the basis that if he were to return to India, he would be harmed or killed by local supporters of a rival political party Shiromani Akali Dal (“SAD”) for refusing to join their party in 2014 as he was a supporter of the political party Aam Aadmi Party (“AAP”). Several weeks later, the applicant was attacked by some masked men.  Several weeks thereafter, some men came and fired gun shots at his house before leaving. The applicant suspected SAD people were involved in the incidents.  After the incidents, the applicant became fearful for his life and left India for Hong Kong.  The factual background was succinctly summarized by the Judge in [2] to [6] of the Form CALL-1 ([2020] HKCFI 2658).

5.  By a Notice of Decision and Notice of Further Decision dated 24 July 2014 and 8 May 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds on BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against him. 

6.  The applicant lodged an appeal to the Board against the Director’s decisions.  By it decision dated 8 May 2018, the Board rejected the appeal and confirmed the Director’s decisions.  The Board did not take issue on the facts raised by him or the law involved and considered it unnecessary to hold an oral hearing.  However, the Board found no evidence that the applicant had been specifically targeted by the SAD people or that they would still have any adverse interest in him after these years.  The Board further found that reasonable internal relocation within India is available for him to move safely to other area away from his home district without any risk of being located by SAD and is a viable option.  For the aforesaid reasons, the Board dismissed the appeal on all applicable grounds.

Decision of the court below

7.  On 11 June 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s decision[5] without giving any grounds.  The Judge, when dealing with the applicant’s application, had nonetheless considered both the decisions of the Director and the Board^[6].  In his supporting affirmation of the same date, the applicant did not provide any grounds for his intended challenge save for saying that his life in India was very dangerous and that he was afraid he would be killed by the SAD people if he went back. 

8.  The applicant did not ask for an oral hearing and the Judge proceeded to process the application on paper.  By his decision dated 29 December 2020, the Judge refused to grant leave to apply for judicial review.  After referring to what was stated in the Form 86 and the supporting affirmation, the Judge set out his reasons for the refusal at [13] – [15] of the Form CALL-1 as follows:

“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 Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, 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 4 January 2021, the applicant filed his Notice of Appeal against the Judge’s decision in which he advanced the following grounds:

“[T]he grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

10.  On the same day that he filed his Notice of Appeal, the applicant requested the appeal to be heard by 3 judges.

11.  In compliance with the Court’s directions of 28 April 2021, the applicant lodged his written submissions on appeal on 17 May 2021.  In those submissions, he quoted passages from ST v Director of Immigration[7] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.  He further stated some general principles in relation to “high standards of fairness”. 

12.  At the hearing, the applicant confirmed he had nothing further to add.

Discussion

13.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

14.  As held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board has been pursued and the Director's decision has been superseded by the Board's decision.  It is therefore not open to the applicant to challenge the Director's decision by way of judicial review.  Hence, in so far as the applicant seeks to challenge the Director’s decisions by way of judicial review, he is bound to fail and the Judge was clearly correct in refusing leave.

15.  The applicant did not in his Notice of Appeal identify any error in the Judge’s decision or advance any ground for reversing the Judge’s decision in the sense used above.  The grounds of appeal stated in it are only directed against the Board.

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection as he had failed to make out a case on any of the applicable grounds.  The Board found no evidence that the applicant had been specifically targeted by the SAD people or that they would still have any adverse interest in him after these years.  The Board further found that reasonable internal relocation within India is available for him to move safely to other area away from his home district without any risk of being located by SAD and is a viable option.  Such findings are primarily within the province of the Board and the Judge was entitled not to intervene in the Board’s decision since no valid public law grounds had been shown. 

17.  In relation to the matters stated in the skeleton submissions, they are general assertions without particulars and cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244. 

18.  As the applicant fails to provide any viable ground of appeal against the Judge’s decision, his appeal is bound to fail.

19.  Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

Order

20.  For the above reasons, this appeal is dismissed.