RE MANINDER SINGH

CACV 287/2018

[2018] HKCA 733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2018

(ON APPEAL FROM HCAL No. 168 OF 2018)

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JUDGMENT

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 22 June 2018 refusing leave to apply for judicial review.  The applicant’s intended application for judicial review is against the decisions of the Director of Immigration dated 3 August 2017 and the Torture Claims Appeal Board dated 17 January 2018 respectively.

2.  On 10 August 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions. He also directed that if such submissions were not lodged within the prescribed time (ie not less than 28 days before the hearing of the appeal), the applicant would be deemed to have waived his right to have an oral hearing and elected to have this appeal disposed of on paper.  The requirement of lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of the applicant is important for the proper and effective functioning of our appeal process and this court has been taking a firm stance against non-compliance with such requirement: see Re Manjit Kaur [2018] HKCA 247, para 10; Re Miha Md Limon [2018] HKCA 278, para 12; Re Ali Arshad [2018] HKCA 304, para 10; and Re Sk Sarfaraj [2018] HKCA 307, para 10.

3.  On 27 August 2018, the hearing of this appeal was fixed for 12 October 2018.  When the hearing date was fixed, the applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

4.  Despite the directions and reminder, the applicant did not lodge any skeleton submissions.  Accordingly, the hearing date was vacated, and we now deal with this appeal on the basis of the material before us.

Background

5.  The applicant is an Indian National.  On 22 August 2013, the applicant sought entry to Hong Kong from Delhi on strength of his passport at the airport and was refused permission to land.  While pending his removal to Delhi, the applicant lodged his non-refoulement claim on 27 August 2013.  His claim was based on his fear of being harmed, or even killed, by Mr Bittu in India who was the supporter of a major political party Shiromani Akali Dal (“SAD”), as the applicant was the supporter of Congress Party and refused to submit to Mr Bittu’s request to join SAD.  The details of the applicant’s claim have been summarised by the Judge at [2] – [15] of the CALL-1 Form.

6.  By the Notice of Decision dated 3 August 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director assessed that the level of risk of harm by SAD and his people against the applicant was low and the Director was not satisfied that the applicant had been inflicted with ill-treatment to a minimum level of severity.  The Director considered that Mr Bittu or the abductor had good opportunity to inflict serious harm or even kill the applicant but they did not and the abductor only kicked and punched the applicant for a few minutes.  The Director also did not accept the applicant’s assertion that Mr Bittu could track him down with nationwide connection as the facts remained that the applicant had never been located and found by Mr Bittu after he fled from his home.  It was also considered that the availability of state protection and the possibility of relocation would further lower or negate the perceived risk.  The decision covered the torture risk, BOR 2 risk, BOR 3 risk and the persecution risk.

7.  The applicant appealed to the Torture Claims Appeal Board against the Director’s decision.  An oral hearing was held on 22 November 2017.  By its decision dated 17 January 2018, the Board considered at [18] of its decision that the applicant did not make out his case that Mr Bittu had threatened him to join SAD as the applicant was only a low level supporter of CP with minimal participation in the political activities.  The Board found that the applicant did not face a real risk of harm if refouled to India and the availability of state protection and possible internal relocation would further lower/negate the risk. The applicant was unable to discharge the burden upon him to establish any of his claims under all applicable grounds and his appeal to the Board was dismissed.

The Judge’s decision

8.  The intended judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed by the applicant on 5 February 2018 set out three grounds of appeal which can be summarized as follows:

(i)   The Director and the Board were unreasonable and unfair and the applicant’s right to life was protected by Article 28 of the Basic Law and Article 2 of the Bills of Rights Ordinance. 

(ii)   The Board failed to give the applicant sufficient time and chance to arrange relevant evidence to prepare his non-refoulement claim and his appeal before the Board.

(iii)   The applicant is a genuine claimant who would face danger and risk of torture if refouled.  He could not find any safe place to stay in his country and to escape was the best option he would have.

9.  The Judge heard the application for leave to apply for judicial review on 8 June 2018.  After summarizing the background of the case and giving consideration to the decisions of the Director and the Board, the Judge gave his reasons in refusing leave in paragraphs [35] to [40] of the CALL-1 form:

“Discussion

35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.^[1]

37. The current application is only concerned with the Director’s decision dated 3 August 2017 and the Adjudicator’s decision dated 17 January 2018 regarding the Applicant’s non-refoulement claim with respect to persecution risk, BOR3 risk and BOR2 risk. (The torture risk issue was well concluded in 2013. It is not a subject matter of the current application.)

38. The Applicant accused the Adjudicator failed to give him sufficient time and chance to arrange evidence. However, he clarified in court that he only wanted to have time to obtain proofs from India to prove his fingers being cut in 2013. There is no evidence that he had applied for adjournment from the Adjudicator and was refused. In fact, the Applicant had been in Hong Kong since August 2013. He had years to obtain such proof if he really wanted to obtain it, which related to a 2013 incident. In any event, that alleged proof was insignificant. The Adjudicator did not say he doubted the Applicant's finger injury. He did not believe the Applicant on other considerations.^[2] In any event, the Applicant confirmed he had provided all he had to the Director and the Adjudicator for their consideration of his non-refoulement claim. Thus, he was not deprived of any chance to prove his claim as fully as he could in the circumstance.

39. The Applicant’s other complaints against the Director and the Adjudicator were vague. He failed to provide particulars in court. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied that the Director and the Adjudicator had proper basis for their individual findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator. Each had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed that they were acquainted with the facts and the law. They considered the Applicant's case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

40.   The Applicant’s complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

The Appeal

11.  The applicant filed the Notice of Appeal on 5 July 2018 and sought to raise the following grounds of appeal, namely:

“My life is danger that’s why I cannot go back I know this Immigration and department matter but I cannot take a Risk in my life as a human been (being). I have right to living this earth.”

12.  By a letter received by the court on 18 July 2018, the applicant requested to this appeal being heard by a three-judge court.

Discussion

13.  Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst 2018 [HKCA] 524, CAMP 54/2018 at [14]:

“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 the 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: 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; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(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 were 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: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6)   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. 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). See: Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

14.  The primary contention of the applicant is based on purported threat to him in India.  We found that the applicant’s sole ground of appeal had been canvassed and rejected by the Judge.  We are also satisfied that the Board had duly assessed the risk of threat and harm at [18] of the Board’s decision and had rightly found that the applicant had failed to established his non-refoulement claim under all applicable grounds in [20] – [33] of the Board’s decision.

15.  Having considered the materials before us, we are satisfied that the Judge had carefully and fully reviewed the decisions of the Director and the Board and we find the judge’s observations to be justified.  We do not see any legal error of law or procedure in the proceedings before the Board and the Director.  Nor is there any reasonably arguable basis to challenge the fairness of the process. Determination of the merits of a non-refoulement claim is a matter for the Director and the Board, not for the court.  We agree with the Judge that leave to apply for judicial review should be refused.

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