ROSHAN KHAN v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 195/2022

[2022] HKCA 1116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 195 OF 2022

(ON APPEAL FROM HCAL NO 541 OF 2019)

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J U D G M E N T

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

INTRODUCTION

1.  On 11 May 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”) dated 29 April 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 22 February 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 July 2017.

BACKGROUND

2.  The Applicant is a national of India. He entered Hong Kong on 29 July 2015 as a visitor and was permitted to remain until 12 August 2015. He overstayed and was arrested by the police on 20 November 2015. On 23 November 2015, he raised a non-refoulement claim on the basis that, if refouled, he would be subjected to ill-treatment by his neighbours and/or the ruling Bharatiya Janata Party (“BJP”) because of (i) his refusal to join or support the Shiromani Akali Dal party, and/or (ii) his religious faith (Muslim). Details of the Applicant’s claim were summarised by the Judge at §§5-19 of the CALL-1 Form.

3.  By a Notice of Decision dated 12 July 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s decision. On 22 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

5.  The Board’s reasons for its decision were summarised by the Judge at §§20-24 of the CALL-1 Form, as follows:

“[20] There are two sources of fear in the Applicant’s claim, one from the Neighbours and one from BJP. It would be convenient to deal with the second source first which is simpler and to get it out of the way.

[21] The Applicant’s fear of harm from BJP was based solely on his belief and understanding from the news media and television. He admitted to the Board that he had no evidence that the ruling party BJP is against him personally. On the assumption that his belief is true, the Board found that there is nothing to show that BJP is targeting the Applicant personally. Hence, the Board came to the conclusion that the Applicant will not face any personal risk of harm from BJP, if he returns to India and rejected his claim based on that fear as totally ungrounded.

[22] The Board assessed the Applicant’s claims of harm from his Neighbours seemingly on the basis of the case as asserted by him. It noted that as at the date of the Notice, twelve years had lapsed since the attack in 2006 but the Neighbours had not done anything to harm the Applicant. They had visited the Applicant’s home looking for him while the Applicant had left the village. The Board found that the Neighbour’s purpose was to ask him to leave the village. They intercepted the Applicant when he returned to the village in 2013. They only humiliated him but did not harm him. The Neighbours had never threatened to kill the Applicant and had never attempted to kill him despite they had ample opportunities to do so. Hence, the Board found his Neighbours had no intention to kill the Applicant and that the purpose of the harassment was to force him to leave the village. The Board then held, if the Applicant relocates to areas other than his home village, that would satisfy the wishes of his Neighbours and it is extremely unlikely that the Neighbours will take the trouble to locate him and kill him for that would serve no purpose.

[23] The Board went on to find on the basis of credible Country of Origin Information (‘COI’) that internal relocation to New Delhi or Mumbai would be viable options to avoid the risk and harm from his Neighbours and that it would not be unduly harsh to expect the Applicant to so relocate, given his age and experience. Further, though there was evidence of police bias, the Board was satisfied that the acts by the officers in a single police station could not represent the acts of the Indian police force as a whole. The Board was satisfied from the COI that state protection of an adequate standard is available to protect the Applicant against harm from his Neighbours.

[24] Then the Board concluded that ‘since state protection and internal relocation are available to [the Applicant], the perceived risk from the [Neighbours] would be negated or reduced. Hence his feared ill-treatment is unlikely to materialise.’”

THE JUDGE’S DECISION

6.  On 25 February 2019, the Applicant filed his Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.  On 29 April 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[30] The Applicant did not state the grounds for judicial review in his Form 86. In his supporting affirmation, he only annexed a copy of the Decision of the Board. He mentioned nothing in his Form 86 or supporting affirmation as to what was wrong with the Decision which called for judicial review. He had been invited by the Court via its letter dated 13 December 2021 to advise the Court of his first language and telephone contact number and to file submissions. He replied stating his first language and telephone number but did not file any submission.

[32] This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.

[33] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of his case as asserted by him. It was on that basis that the Board found the Applicant’s feared ill-treatment is unlikely to materialise. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.”

THIS APPEAL

8.  In his Notice of Appeal filed on 11 May 2022, the Applicant stated that he was not satisfied with the Judge’s decision because it did not accord with the facts and reality, and complained that there was no transparency in the decision.

9.  In his 5-page written submissions dated 23 May 2022, the Applicant repeated his claim that he would not be safe in his home country. He raised some general allegations about the situation in his country, and requested to be allowed to stay in Hong Kong until he could solve his problem there. He also said that he was not satisfied with the decision of the Board because they “ignored so many things” which related to his case.

DISCUSSION

10.  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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

11.  In particular, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. We do not see any such error of law, procedural unfairness or irrationality in the Board’s Decision in the present case.

12.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 29 April 2022, and has failed to raise any viable ground of appeal against the Order.

13.  The Applicant’s appeal has no merits, and is dismissed.