MASIH ROBIN v. TORTURE CLAIMS APPEAL BOARD

CACV 586/2021

[2022] HKCA 1828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 586 OF 2021

(ON APPEAL FROM HCAL NO 695 OF 2020)

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J U D G M E N T

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

Introduction

1.  On 22 December 2021, DHCJ Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision made by the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 11 February 2019. The Board’s decision will be referred to later in this Judgment [10].

2.  On 24 December 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.

3.  Pursuant to the directions of Registrar of Civil Appeals made on 24 December 2021, the applicant should lodge his written submissions on or before 7 January 2022. He failed to do so. The Registrar had directed that in the event the applicant failed to lodge his written submissions by the deadline, he will be deemed to have abandoned his right to rely on written submissions, and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials.

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

5.  The applicant is a national of India. He arrived in Hong Kong on 17 August 2015 as a visitor with permission to remain up to 31 August 2015. He overstayed and then surrendered to the Immigration Department. On 21 January 2016, he raised a non-refoulement claim alleging that if refouled, he would be harmed or killed by his paternal uncles over a land dispute. The factual background of this case was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2021] HKCFI 3828).

6.  As mentioned earlier, in a Decision dated 7 November 2018, the Director of Immigration (“the Director”) having assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], determined it against him.

7.  In the circumstances of the present case as shown below [9-10], it is necessary to consider the Director’s findings and decision. In his decision, the Director assessed the level of risk of harm from the applicant’s uncles upon his return to India as low. As explained in [12] and [13] of the Director’s decision, from June 2014 to February 2015, the uncles only caused trouble at the applicant’s land and verbally threatened the applicant in order to coerce him to transfer the land to them. During the incidents of attack in March 2015, despite having the opportunity to cause serious injury to the applicant, they did not do so. In any event, it was a private family and land dispute without any official involvement. Further, state or police protection would be available to the applicant if sought [14] – [16]. The objective country of origin information (“COI”) showed that reasonable internal relocation alternatives are available in India [17] – [22] and it would not be unduly harsh for the applicant to move to other large cities of India where it would be difficult if not impossible for his uncles to locate him [23] – [29].

8.  On 26 November 2018 the applicant lodged an appeal to the Board against the Director’s decision.

9.  On 24 January 2019 however, he wrote to the Board requesting to withdraw his appeal as he wanted to return to his home country because it was safe for him to do so. He further stated that “I understand that by withdrawing my appeal/petition, the decision which I had appealed and petitioned against will remain in force. I understand this is a final disposal of my appeal and petition before [the Board].”

10.  In a letter dated 11 February 2019, the Board allowed the applicant’s request to withdraw his appeal after due consideration of all the available information placed before it, and being satisfied that the applicant’s request was freely made, and that he understood the consequences of the withdrawal. The Board was also satisfied that the applicant had good reason to do so as he considered it would be safe for him to return to India. The Board accordingly directed that the applicant’s appeal/petition be withdrawn.

Decision of the court below

11.  However, more than one year after the applicant’s withdrawal of his appeal/petition to the Board against the Director’s decision, on 20 April 2020, the applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision of 11 February 2019. The application was out of time (O.53, r.4 of Rules of High Court (Cap.4A)). In the applicant’s supporting affirmation, he did not explain the inordinate delay, nor advance any ground for seeking relief. He merely stated that he was not satisfied with the decision, saying he could not go back to his home country as his life would not be safe there, and that he wanted to stay in Hong Kong until his problem is solved.

12.  Yet, on 30 November 2021, he filed an affirmation to apply to withdraw his application for leave to apply for judicial review, stating that he wanted to return to India as it would be safe for him to do so.

13.  The Judge proceeded to dispose of the applicant’s application on paper. Upon consideration of the Director’s and the Board’s respective decisions, and upon the applicant’s latest confirmation that it would be safe for him to return to his home country, the Judge dismissed the applicant’s application on 22 December 2021 for the reasons set out in [10] – [14] of his decision:

“10. 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.

11. In the Applicant’s case, the Board had determined and disposed of his appeal upon what appears to me a proper and valid withdrawal by the Applicant at his own request and after a deliberate, informed and well-considered decision on his part, and hence his appeal was no longer extant and the Board had become functus officio with no jurisdiction to take any further step regarding his appeal: see Re Das Purnima Rani [2019] HKCA 669. As such and in the absence of any evidence from the Applicant that his withdrawal was invalid, or of any error of law or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12. The fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. 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 determination of the Applicant’s claim.

14. Furthermore, the Applicant recently on 30 November 2021 filed an affirmation requesting to withdraw his application because he wants to return to his home country as it is now safe for him to do so.”

Appeal to this Court

14.  On 24 December 2021, the applicant filed a Notice of Appeal in which he set out the following grounds:

(1)  He had withdrawn his leave application for judicial review thinking that his problems were solved. He found out that he was wrong, and his life is still in danger in his country. That is why he is now appealing the Judge’s decision.

(2)  The Director had failed to appreciate or give proper weight to the presence of state acquiescence in the applicant’s case and his case was rejected unfairly.

(3)  The Director, the Adjudicator and the Judge have failed to take his argument into account or the Director has failed to give sufficient weight to his argument before reaching his decision.

(4)  The Adjudicator failed to make sufficient enquiries before finalizing the determination, and wrongly considered that the applicant had failed to provide credible evidence to prove the material elements of his claim.

(5)  The Adjudicator had failed to give sufficient chance to the applicant to arrange evidence to support his non-refoulement claim and his appeal/petition.

(6)  The gravity and circumstances of the applicant’s case were not properly considered by the Director and the Board and the applicant should be given an opportunity to plead his case properly.

Legal principles

15.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purposes of this appeal, the salient principles are as follows:

(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 on appeal, which operates as a re-hearing, 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. 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. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

Discussion

16.  As the applicant had himself stated in his affirmation on 30 November 2021 that he wished to withdraw the leave application for judicial review because it was safe to go back to his home country, the Judge’s dismissal of his application could not possibly constitute an error in law, or procedural unfairness or irrationality.

17.  In any event the Judge had duly considered the merit of the applicant’s case by considering first, the Director’s decision in which it was clear that the land dispute was personal and private in nature without any state element, and there was no evidence to suggest that the applicant’s uncles had any real intention to cause any serious harm to him, and therefore the risk of harm upon his return to India was assessed to be low, and secondly, the Board’s decision. In this regard, the Judge had rightly explained that the Board had determined and disposed of the applicant’s appeal upon what appeared to be a proper and valid withdrawal of the appeal by him, thus the appeal was no longer extant, and the Board had become functus officio with no jurisdiction to take any further step on the applicant’s appeal: see Re Das Purnima Rani [2019] HKCA 669. As such and in the absence of any evidence from the applicant that his withdrawal was invalid, or there was any error of law or procedural unfairness in the Board’s decision, there is no basis to challenge the Board’s decision.

18.  As for the other grounds, they were not raised before the Judge. It is not the practice for this Court to entertain new grounds not canvassed in the Court below: Orense Marian Masangkay [2022] HKCA 33 at [7]. We see no basis to deal with them.

19.  Having considered the materials before us, we are of the view that the Judge’s observations and findings are fully justified.

Order

20.  For the above reasons, this appeal is dismissed.