RE SUBHASH KUMAR

CACV 412/2018

[2019] HKCA 152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 412 OF 2018

(ON APPEAL FROM HCAL 1079/2017)

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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 given on 17 August 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 1 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 23 October 2015 and 9 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 16 September 2005 and was permitted to remain until 30 September 2005.  He overstayed and was arrested on 21 December 2007.  He lodged a non-refoulement claim on 11 November 2008. 

3.  The applicant’s claim was based on threats from a person identified as DS who had a land dispute with the applicant’s family.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 23 October 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 9 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 29 September 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [22] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [51] to [53] that state protection would be available for the applicant and at [54] that internal relocation would be viable.

The deputy judge’s decision

8.  The applicant filed a Form 86 on 14 December 2017 which contained no ground for seeking relief. 

9.  In the affirmation in support of the leave application dated 14 December 2017, the applicant advanced various grounds for judicial review which are summarised below:

(i)   procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(ii)   irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(iii)   irrationality in the adjudicator’s failure to evaluate and make findings of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(iv)   irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and misdirected herself as to the extended meaning of state protection;

(v)   irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(vi)   procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(vii)   procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(viii)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [17] of the CALL-1 Form:

“12. These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant at all, and I am unable to find any basis or merits in any of them.

13. The only other complaint which the applicant did elaborate in his affirmation is over his hearing bundle which he claims was provided to him only a few days before his appeal hearing including the Director’s skeleton submission all were in English thereby given him insufficient time to prepare for his appeal and to find an interpreter to assist him.

14. Even assuming that the hearing bundle was indeed provided to him only shortly before the hearing, and I note that he has not produced any evidence such as the letter from the Director which accompanied the bundle, he should be well familiar with most of the documents such as his own SCF, record of his screening interviews and the decisions of the Director all of which had already been made available to him in his earlier proceedings before the Director.

15. Above all, as noted in the Board’s decision, the fact is that in his appeal before the Board the applicant was still having the benefit of legal representation to assist him and that during his oral hearing he never raised any issue about the hearing bundle nor did he request for more time for his preparation. In the circumstances I do not find anything amiss arising from any late provision of the hearing bundle to the applicant in his appeal before the Board.

16. In the premises and having proceeded to consider 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

11.  In the Notice of Appeal dated 23 August 2018 the applicant did not advance any grounds of appeal.

12.  In his affirmation filed in support of the appeal dated 23 August 2018, the applicant advanced the following grounds of appeal:

(i)   the judge was wrong in law in holding that there was no state acquiescence or involvement; and

(ii)   the judge failed to provide detailed reason in support of his decision.

13.  In Exhibit A to the affirmation, the applicant repeated the matters raised in his affirmation dated 14 December 2017 filed in support of his application before the judge.

14.  In his skeleton submissions dated 24 December 2018, the applicant raised two grounds.  The first ground is concerned with the high standard of fairness. The second ground is concerned with the duty to act fairly.  Both grounds are apparently concerned only with the decisions of Board and the Director.

15.  We heard the appeal on 30 January 2019.

Discussion

16.  As to the first ground of appeal raised in the affirmation dated 23 August 2018, the judge did not refer to state acquiescence and as is clear from the Board’s Decision, this was not the basis of that decision.

17.  In any event, an application for leave for judicial review is not a rehearing and the court’s role is not to act as an avenue of further appeal.  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 to come to a view on state acquiescence even if this ground had been raised before him, as the primary decision maker is the Board.  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.

18.  As to the second ground, the judge gave reasons for dismissing the leave application at [12]-[17] of the CALL-1 Form.  As noted by the judge, the applicant failed to give particulars of the grounds for judicial review put forward by him.  The judge has clearly given sufficient reasons after considering all the available material.

19.  As for the matters raised in the applicant’s skeleton, those are apparently directed at the Board and the Director but not to the judge.  Those matters thus have no bearing on the outcome of this appeal. 

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