RE KASHAV RAJ AMIT

CACV 120/2023, [2023] HKCA 1132

On Appeal From [2023] HKCFI 951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 120 OF 2023

(ON APPEAL FROM HCAL NO 283 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 19 April 2023, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 951).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 24 January 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 31 January 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 24 April 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper. Accordingly, we proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of India. He last arrived in Hong Kong on 30 December 2013 and was granted permission to remain as visitor up to 13 January 2014. He failed to depart and had overstayed since 14 January 2014. On 3 March 2014, he surrendered to the Immigration Department and was released on recognisance on the same day. He was later arrested for breach of condition of stay by overstaying. On the same day, he raised a non-refoulement claim on the basis that if he returned to India, he would be harmed or killed by some revenge seekers of a political party named Shiromani Skali Dal. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] ‑ [5] of the Leave Decision.

5.  By their decisions respectively dated 31 January 2018 and 24 January 2019, the Director and the Board dismissed his non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate his non-refoulement claim on all applicable grounds. In particular, in dismissing his appeal against the Director’s Decision, the Board found the applicant’s evidence to be vague and lacking in necessary details as to his account of events prior to his departure from his home country. The Board therefore doubted the credibility of his claim that it was because of fear of harm that he had fled to Hong Kong. The Board further held that, in the absence of any evidence of any official involvement, state / police protection would in any event be available to the applicant upon his return to India and that reasonable internal relocation was available to him to move safely to other parts of the country without any risk of being located by the alleged seekers. Accordingly, his claim for non-refoulement protection failed on all applicable grounds and the Board dismissed his appeal.

The Leave Decision

6.  On 30 January 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision. No ground of review was given by the applicant in his Form 86. In his supporting affirmation, he merely asserted that he would like to reject and review the decision by the Immigration Department as they disregarded his dangerous situation.

7.  On 28 February 2023, the Deputy Judge heard the application for leave to apply for judicial review and the applicant appeared in person with the assistance of a Punjabi interpreter.

8.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review. His reasons were set out in detail at [10] ‑ [15] of the Leave Decision:

“10. On 30 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

11. 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.

12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 94 ‑ 111 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. The fact is that it has also been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if true 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.

14. 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.

15. 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.”

The Appeal

9.  On 24 April 2023, the applicant filed a Notice of Appeal to appeal against the Leave Decision.

10.  In his Notice of Appeal, he stated:

“THE HIGH COURT DID NOT FIND ANY ERROR OF PROCEDING, BUT I DO NOT BELIEVE, BECAUSE IN ADJUDICATOR DID MANY ERROR.” (sic)

11.  Contrary to the directions of the Registrar of Civil Appeals dated 24 April 2023, the applicant failed to lodge any written submissions.

Discussion

12.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

14.  In our view, the applicant’s allegations have no substance. The applicant only disagreed with the Leave Decision, but failed to point out any specific error in the Leave Decision. Accordingly, there is no proper ground of appeal and his appeal must be dismissed.

15.  For the reasons given above, the applicant’s appeal is plainly a non-starter. Accordingly, we dismiss the appeal.