SOHI MANPREET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 140/2019

[2019] HKCA 757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 140 OF 2019

(ON APPEAL FROM HCAL NO 768 OF 2018)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 7 March 2019. By that decision, the Judge had refused the applicant leave to seek judicial review of the decisions of both the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) regarding his non‑refoulement protection claim.

2.  The applicant is a national of India who entered Hong Kong as a visitor on 6 April 2015.  He began overstaying from 13 April 2015 and was arrested by the police on 9 September 2015.  On 12 September 2015, he raised a non-refoulement claim on the basis that if he were to return to India, he would be harmed or killed by his three uncles because of a land dispute.

3.  According to the applicant, his father and three uncles had inherited some land from the applicant’s grandfather.  Amongst the three uncles, one was a village head and an elected member of the Shiromani Akali Dal (“SAD”), who exercised great influence over the local authority and police, whilst the other two were SAD supporters.  After his father’s death in suspicious circumstances in 2009, the applicant and his mother were assaulted by the three uncles in relation to the land dispute.  The police also threatened the applicant, indicating that he should give up the land to his uncles.

The Director’s decision

4.  By a Notice of Decision dated 21 July 2017, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk[3] and persecution risk[4].

5.  In short, he Director did not accept that the alleged ill-treatment had attained the minimum level of severity.  There was no evidence that the applicant’s uncles had actively approached or tried to locate him in any instance, hence it was not accepted that the applicant’s claim was real and foreseeable.  There was nothing to indicate that his life was in real danger.  The availability of state protection and internal relocation alternatives, the Director found, further lowered or negated the level of risk.

The Board’s decision

6.  The applicant appealed to the Board.  He attended the appeal hearing on 14 December 2017.  In view of the significant inconsistencies and contradictions in the applicant’s evidence regarding the crucial and central aspects of his claims, the Board found the applicant to be an untruthful witness, and that he had fabricated his claims about his uncles. The Board decided that the applicant’s claims for non-refoulement protection were not made out and rejected the applicant’s appeal on 20 April 2018.

The intended judicial review

7.  On 3 May 2018, the applicant filed a Form 86 and an affirmation to seek leave to apply for judicial review against the decisions of both the Director and the Board.

The Judge’s decision

8.  Based on Re Moshsin Ali[5],the Judge held the applicant was barred from seeking judicial review against the Director’s decision.  In relation to the Board’s decision, he decided that the applicant’s complaints were not reasonably arguable.  There was, he found, proper basis for the adjudicator’s finding, conclusion and decision which were not Wednesbury unreasonable.  There was also no error of law or procedural unfairness.   As the applicant had no realistic prospect of success in the intended judicial review, the leave application was refused on 7 March 2019.

Grounds of appeal

9.  The applicant filed a Notice of Appeal against the Judge’s decision on 20 March 2019.  The grounds contained therein can be summarized as follows:

(1)   The Judge failed to consider the significance and level of unfairness the lack of language assistance had on him as a litigant.

(2)   There had been no assistance in interpreting the content of the hearing bundle to him.  None of the contents in the appeal bundle had been verified by him.

(3)   The hearing before the adjudicator took place on a date that was much later than when he confirmed his instructions in the non-refoulement claim form.  Those instructions were not read back to him to refresh his memory.

(4)   The lack of interpretation services should be considered independently, regardless of whether his friends had helped him out with the language problem.  In any event, the Judge’s finding that he had had help at all material times was baseless and presumptuous.

10.  These grounds, all of which pertain to the alleged lack of interpretation services, were not raised in the original leave application before the Judge.  Neither did the applicant challenge the lateness of the date of the Board hearing before the Board.

Legal principles

11.  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 Country of Origin Information (“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.

12.  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.  In determining an appeal, the Court of Appeal focuses on the decision of the Judge and would only reverse that decision if it can be demonstrated that the Judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

13.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

14.  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.

Merits

15.  Before the Judge, the applicant had not complained about the Board’s late hearing date.  As said, an appeal is not the occasion for introducing new grounds.  In any event, this ground is without merit as the appeal was heard before the Board within a reasonable time after the filing of the notice of appeal[6].

16.  The Judge’s finding that the applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times was based on the uncontested fact that a friend had helped him out in preparing his Form 86 and supporting affirmation.  In fact, at every stage of the appeal process the applicant was able to advance in English arguments against the decision which he was appealing.

17.  In reaching the conclusion that the applicant had exaggerated his language problem, the Judge had also considered the fact that the applicant was assisted by an interpreter in the screening process before the adjudicator.

18.  Before us, the applicant claimed that his brother had also been murdered by the people going after him, in June 2018.  A completely new point, this was never raised before the Judge in the leave application of 7 August 2018 and it is not for this Court to deal with. 

19.  In sum, the applicant is unable to demonstrate that the Judge had made errors of law, or that he had failed to take account of relevant matters already placed before the court, or that he was otherwise plainly wrong. 

Disposition

20.  As there is no merit in the appeal nor any prospect of success in the intended application for judicial review, we dismiss the applicant’s appeal.