RE KULWANT SINGH

CACV 239/2020

[2021] HKCA 76

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 239 OF 2020

(ON APPEAL FROM HCAL NO. 1404 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 22 June 2020 in HCAL 1404/2018 refusing 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 7 June 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 21 June 2017.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 9 October 2020, the applicant shall lodge with the court 2 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 24 November 2020.  Despite the letter sent by the court on 14 October 2020 reminding the applicant of the aforesaid directions, he failed to do so.  The Registrar further directed that in the event of the applicant’s failure to lodge his skeleton arguments, he shall be deemed to have waived his right to have an oral hearing and this Court shall proceed to determine the appeal on paper only.

Background

3.  The applicant is a national of India.  He entered Hong Kong illegally on 23 October 2009 and was arrested by police on 3 November 2009.  He was then referred to the Immigration Department for investigation.  He had raised a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) and his torture claim was rejected on 20 August 2012.  On 10 April 2013, he raised a non-refoulement protection claim under the Unified Screening Mechanism on the basis that if he returned to India he would be harmed or even killed by his paternal uncle over a property dispute.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1223. 

4.  By the Notice of Decision dated 21 June 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2]and the persecution risk[3].

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 20 April 2018, the Board dismissed the appeal on 7 June 2018.  For the reasons set out in [35] to [50] of the decision, the Board found that the applicant’s case was based on mere assertions and his account of event was illogical, implausible and incredible.  In any event, reasonable state protection is available and internal relocation is a viable option.  For the aforesaid reasons, the appeal was rejected on all applicable grounds.

The Judge’s decision

6.  On 17 July 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decisions of the Director and the Board.  In his affirmation in support of his application, as summarized by the Judge at [12] of the Call-1 Form, he advanced the following grounds for his intended challenge:

(1)  The Adjudicator failed to make sufficient enquiry before finalizing the determination and without giving the applicant sufficient chance to arrange relevant evidence for his non - refoulement claim as well as his appeal.

(2)  The Director and the Adjudicator assessed and made their decisions in an unfair and unreasonable manner.

(3)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence which led to an unfair outcome in rejecting the applicant’s claim.

(4)  The Director failed to take into account that the applicant was tortured at the behest of and with full collusion of the police and the state law enforcement agencies and that the state should be rendered liable to the applicant for its failure to provide reasonable protection for its citizens.

(5)  The Director failed to consider or give sufficient weight to those listed relevant COI which supported the applicant’s aversions that the Indian police would not be able to protect its people.

(6)  The Director instead relied on COI which suited his pre - conceived conclusion which was a clear case of unfair attitude to render his decision void.

(7)  The Director failed to recognize that the corruption and incompetency of the administration in the applicant’s country is a very serious problem as reported by various human rights organizations which was stated in the testament of the applicant’s assertions.

(8)  The Director failed to attain high standard of fairness required by the Wednesbury test that his decision should be considered unreasonable in the scope of public law. 

7.  The Judge heard the application 7 January 2020 and by the CALL-1 Form of 22 June 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [13] – [16] of the CALL-1 Form:

“13.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Adjudicator had erred in their decisions, or how did the Adjudicator fail to make sufficient enquiry or to give the Applicant sufficient opportunity to provide his evidence in support of his claim or appeal, or in what way was state of acquiescence relevant to his case, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or to apply high standard of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

14.  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.

15.  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 the Applicant’s 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.

16.  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.”

The Appeal

8.  On 3 July 2020, the applicant filed his Notice of Appeal in which he put forward the following:

“I am not satisfied with the decision because it’s away from facts and reality which are related with my case. There is no any transparency in the decision. Please accept my application and allow me to process further my case.”

General Principles

9.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [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 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.  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). 

Discussion

10.  The applicant has not put forward any viable ground against the Judge’s decision and the appeal is bound to fail.    

11.  Having read the decision of the Board, we take the view that the Board had carefully considered the applicant’s evidence and decided against it on the issue of credibility.  It was perfectly open for the Board to reject the applicant’s case as his story was against common sense and logic.  In our judgment, the Board’s decision was eminently reasonable and fully justified. 

12.  We are satisfied that the Judge had duly considered the Board’s decision with vigorous examination and anxious scrutiny and we found no errors of law or procedural unfairness or irregularities in the Judge’s decision.

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

[1]  This refers to the risk of violation of the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.