SUBHASH CHANDER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 340/2020

[2021] HKCA 175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 340 OF 2020

(ON APPEAL FROM HCAL NO 1694 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 30 July 2020, Deputy High Court Judge K W Lung (“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 16 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 15 February 2017 rejecting the applicant’s non-refoulement claim.

2.  On 10 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  He arrived in Hong Kong on 7 October 2014 and was refused permission to land.  He then lodged a non-refoulement claim on the same day. 

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his girlfriend’s relatives who objected to their relationship. The factual background was succinctly summarized by the Judge in [6] – [8] of the Form CALL-1 ([2020] HKCFI 1745).

5.  By notices of decision dated 18 December 2014 and 15 February 2017, the Director rejected the applicant’s claim on all applicable grounds and determined it against him.  The former notice of decision covered the grounds of BOR 3 risk[1], persecution risk[2], torture risk[3], while the latter covered BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decisions.  For the appeal against the Director’s decision of 18 December 2014, the oral hearing was originally fixed for 10 March 2015 but rescheduled for 21 April 2015 as the applicant did not attend on the first date.  At the hearing of 21 April 2015, he declined to answer any questions by the Board.  The Board found that the applicant’s story was unreliable due to irreconcilable inconsistencies in his evidence, and because his core allegations were unsupported in circumstances where one would reasonably expect objective support to be adduced. The Board concluded that there was no real risk of harm, and as such considered it unnecessary to consider whether internal relocation was viable. Thus on 8 June 2015, the Board dismissed the applicant’s appeal against the Director’s decision dated 18 December 2014 in relation to BOR 3 risk, persecution risk, and torture risk.

7.  The applicant did not seek leave to judicially review the Board’s decision of 8 June 2015.

8.  For the appeal against the Director’s decision dated 15 February 2017, the Board decided that it was not necessary to hold a hearing in relation to BOR 2 risk, because there were no new materials or evidence to consider, and nothing that warranted an oral hearing.  Based on the factual findings of the Board’s decision of 8 June 2015, the Board concluded that there was no BOR 2 risk.  Thus on 16 August 2018, the Board dismissed the applicant’s appeal against the Director’s decision dated 15 February 2017.

Decision of the court below

9.  On 21 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision of 16 August 2018.  He did not state any grounds for seeking relief in either his Form 86 or affirmation in support, though in his affirmation he stated that he wanted his case to be heard fairly and on “humanly possible ground”.

10.  Upon consideration of the documents only, on 30 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [17] – [20] of the Form CALL-1 ([2020] HKCFI 1745, HCAL 1694/2018) as follows:

“17. It is obvious that the Board had rejected all the facts in support of his application. As such, he has no factual basis for his claim. Humanitarian ground does not come into play in his application.

18. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held “13.… …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.”

19. There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

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

Appeal to this Court

11.  On 10 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision. His ground of appeal was that the Board disregarded his dangerous situation.

12.  On the same day that he filed his Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

13.  Pursuant to the Court’s directions of 17 December 2020, the applicant lodged his written submissions on 11 January 2021. 

14.  In those submissions, the applicant argued that the Board’s determination of his claim was procedurally unfair because he was never provided with proper legal and language assistance.  The applicant argued that the Board’s decision was never read back to him in his language, and as such, he did not thoroughly know how his claim was determined and thus it was not easy for him to appeal.

15.  The applicant also submitted that there was procedural unfairness due to public policies of trying to dispose of non-refoulement claims as quickly as possible, and that such policies indicate a discriminatory attitude on the part of the authorities.

16.  Nevertheless, in those submissions the applicant did not provide any details or particulars in support of his arguments.  Nor did he have anything to add when he appeared before this court.

Legal principles

17.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in cases such as 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 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. 

Discussion

18.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision, or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars 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.  He did not have anything to add when he appeared before this court.

19.  It is insufficient for the applicant to argue that a lack of proper legal and language assistance resulted in procedural unfairness, without at least raising specific details as to where or how the Board or the Judge fell into error or were unfair or unreasonable.  The applicant has not raised such details; thus this argument is untenable.

20.  The applicant was legally represented and provided with language assistance on his claim before the Director.  In any event, as this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403. 

21.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the reliability of the applicant’s story.  The Board concluded that there was no real risk of harm.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

22.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis and he was entitled to refuse leave. 

Order

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