RE JASWINDER SINGH

CACV 217/2018

[2018] HKCA 609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 217 OF 2018

(ON APPEAL FROM HCAL 505/2017)

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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 the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 7 June 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 7 April 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 4 November 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 22 September 2013 illegally and was later arrested by the police on 9 October 2013.  After his arrest, he lodged a non-refoulement claim on 25 October 2013. 

3.  The applicant’s claim was based on the threat from his uncle who was well connected politically.  In 2011 and 2012, his uncle asked the applicant’s father to transfer a plot of land to him but the applicant’s father refused.  The applicant’s uncle then attacked the applicant and his father.  The applicant decided to flee to Hong Kong.

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

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 30 March 2016, the Board dismissed the appeal on 7 April 2017 (“the Board’s Decision”). 

6.  At [19] of the Board’s Decision, the Board found that the applicant’s claim was not reliable.  The Board was also satisfied at [25] that state protection was available for the applicant and at [43] that internal relocation was viable.

The deputy judge’s decision

7.  The applicant filed a Form 86 on 10 August 2017 which was about 4 months after the Board Decision.  He relied on the following grounds of judicial review:

“(1) the Respondent had unlawfully fettered his discretion by refusing applicant’s appeal on the grounds that they did not satisfy the requirement.

(2) the Adjudicator acted in procedurally unfair in manner in dealing with the applicant’s appeal.

(3) the Respondent’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.

(4)     The Respondent failed to meet the greater care and duty owed to self-represented claimant.”  

8.  From the particulars given in the Form 86 and the affirmation in support of the leave application dated 11 September 2017, the applicant appears to rely on the following matters:

(1)     he was not properly prepared for the appeal hearing because he only received the appeal bundle several days prior to the hearing and it was in English.  He did not know its contents and was confused on the day of the hearing;

(2)     he had answered all the questions and gave evidence honestly.  His credibility should not be questioned;

(3)     the Board relied on Country of Origin information which was not recognised, hearsay and out of date.

9.  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 extend time for applying for leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at paragraphs 15 to 21 of the CALL-1 form:

“15. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. If I am wrong and should have granted an extension of time to file this application then, I find the adjudicator’s decision to be without fault, he carefully analysed the material, claims and evidence. The same applies to the decision of the Director. The applicant’s grounds and complaints are not made out. I find no substance in the grounds of this application.

16. He relied on three grounds, the first was that he was not properly prepared for the appeal hearing because he only received the appeal bundle several days prior to the hearing and it was in English. He did not know its contents and was confused on the day of the hearing.

17. He was asked during the hearing if he informed the adjudicator of the TCAB that he was confused and did not understand the bundle and proceedings because there is no mention of any complaint or request to adjourn in the adjudicator’s decision. The applicant could not recall if he mentioned this to the adjudicator. There was an interpreter present to assist the applicant and I am sure if he was genuinely confused he would have asked for clarification and assistance. Moreover, this application and affirmation were in English which throws doubt on this ground. There is no merit in this ground.

18. The second ground submits that the applicant answered all the questions and gave evidence honestly. However, the Director says in the decision that the applicant elected not to give evidence. During the hearing, the applicant could not recall if he did or did not give evidence in his appeal. There is no merit in this ground.

19. The last ground complains of the TCAB relying on Country of Origin information which was not recognised, hearsay and out of date. There are no particulars provided by the applicant to support this ground. In any event, the adjudicator did, despite his findings that the applicant was not a credible and genuine claimant, look at and set out the Country of Origin information he referred to. I am satisfied there is no merit to this ground.

20. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21.    In my judgement, even if I had granted an extension of time to file this application, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

10.  By a Notice of Appeal dated 11 June 2018, the applicant appealed against the judge’s decision.  His sole ground of appeal was that “I can’t go back to my country at this moment because my life is not safe in my country.  Please help me to stay in Hong Kong until my problem will be solved”.

11.  In his skeleton submissions dated 14 August 2018, he repeated the same ground as the Notice of Appeal.  He said that his enemies are so powerful that they can locate the applicant anywhere in his home country.  He will be tortured or killed if he goes back.

12.  The applicant agreed by a letter of 11 June 2018 that the appeal can be heard by two judges.

General principles

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

Discussion

14.  The only ground of appeal relied on by the applicant is that it is not safe for him to return to India.  This is not a valid ground of appeal at all.  It identifies no alleged error on the part of the court below.

15.  Further, after reading the materials available to us, we are satisfied that the deputy judge’s observations are justified in light of the grounds raised and the materials before her. 

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