RE RAM SINGH

CACV 336/2020

[2021] HKCA 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 336 OF 2020

(ON APPEAL FROM HCAL 2980 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung (“the Deputy Judge”) as set out in the Form CALL‑1 dated 30 July 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”).[1] The intended judicial review is targeted at the decision of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office (“the Board”) dated 13 December 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 25 January 2017 (“the Director’s Decision”) rejecting the applicant’s non‑refoulement claim.

2.  By a letter dated 10 August 2020, the applicant consented to the appeal being heard by a two‑member court.

A.  Background

3.  The applicant is a national of India, born in 1973.  He entered Hong Kong illegally on 31 August 2015 and surrendered himself to the Immigration Department on 2 September 2015.  He lodged a non‑refoulement claim on 16 October 2015.  The details of his claim and his personal background were set out in paragraph 8 of the Director’s Decision and paragraphs 32‑46 of the Board’s Decision.

4.  The applicant claimed that, if refouled, he would be harmed or killed by his cousin Avtar Singh (“AS”) due to a land dispute.  The applicant claimed that he had inherited a piece of land from his father, who had in turn inherited it from the applicant’s grandfather.  That piece of land was next to that inherited by AS.  AS wanted to expand his farm and offered to purchase the applicant’s land at an undervalue.  The applicant refused.  Since then, AS and his subordinates had been harassing and intimidating the applicant.  In June 2015, they came to the applicant’s land with wooden sticks and attacked the applicant.  The applicant’s report to the police was of no avail due to AS’s connection with the dominating political group.  Out of fear, he fled to Hong Kong. 

B.  The Director’s Decision and the Board’s Decision

5.  The Director assessed the claim with respect to the BOR3 risk,^[2] the persecution risk,^[3] the torture risk^[4] and the BOR2 risk.^[5]  The Director did not accept that the applicant was a genuine non‑refoulement protection seeker and rejected his claim.

6.  The applicant appealed to the Board.  A hearing of the appeal was held on 5 October 2018, during which the applicant was represented by a duty lawyer and assisted by a Punjabi interpreter.  The applicant, after being advised of the consequences, chose not to give evidence, though his lawyer made submissions on his behalf.  After considering the parties’ submissions and the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds, and dismissed his appeal.

7.  The Board found that the information in both the applicant’s non-refoulement claim form and his interview before the Director lacked sufficient detail, required explanation, or was implausible in relation to several key events (paragraphs 49‑57 of the Board’s Decision).  The Board found itself unable to attach any weight to the statements or claims made by the applicant to the Immigration Department.  As a consequence, the Board dismissed his appeal on 13 December 2018.

C.  The Deputy Judge’s Decision

8.  The applicant filed a Form 86 on 27 December 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The applicant repeated his personal background and claim, and advanced six grounds of review against the Board’s Decision under the categories of misdirection in law, procedural impropriety or unfairness and irrationality.  He also put forward nine grounds for judicial review of the Director’s Decision under the same categories, but he later amended the Form 86 to remove references to the Director and the Director’s Decision.[6]

9.  The grounds against the Board could be summarized as follows:

(1)  Misdirection in law — the Board wrongly held that the applicant had to have experienced torture in the past in order to establish substantial grounds for believing that there was a risk of torture in the future.

(2)  Procedural impropriety/unfairness — the Board failed to carry out sufficient research and inquiry into the country of origin information (“COI”) and/or failed to have regard to relevant and up‑to‑date COI.

(3)  Irrationality — the Board failed to consider relevant COI, failed to consider whether there was a consistent pattern of human rights violations in India, failed to assess the issue of state protection, and took into account irrelevant considerations and cherry‑picked COI, which resulted in Wednesbury unreasonableness.

10.  The Deputy Judge heard the applicant on 21 August 2019.  After hearing the applicant and considering the available documents, he concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 14‑19 of the Deputy Judge’s Decision:

“ DISCUSSION

14. The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision and the Board’s Decision to him.

15. I explained the Board’s findings above to him and asked him if he had any comments. He said that he had no comments.

16. It is obvious that the Board did not accept his factual evidence in support of his claim. He had no factual basis for his claim.

17. Those grounds in support of the applicant’s application are irrelevant to the finding of facts by the Board. They do not assist his application.

18. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.”

D. This appeal

11.  The applicant filed a Notice of Appeal on 10 August 2020 to appeal against the Deputy Judge’s Decision, stating as his grounds of appeal:

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

12.  The applicant lodged his skeleton submissions on 2 December 2020, in which he asserted that the decisions in his case so far had not been transparent, that many things were ignored by the decision-makers, that the situation in his home country was different from what they thought, and that torture and deaths were common for those held in police custody.  He reiterated that he would be in danger if he were to return to his country.

13.  At the hearing, the applicant confirmed that he had nothing to add to the written materials provided.

E.  Discussion

14.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

15.  First, 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.  While the court in non‑refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board having regard to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risks of harm, state protection and viability of internal relocation are matters 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, procedural unfairness or irrationality in the decision of the Board.

16.  Secondly, an appeal against the refusal of leave by a judge of the Court of First Instance is not an 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 determining an appeal, the Court of Appeal focuses on the decision of the judge and will only reverse that decision if an appellant can demonstrate that the judge has made errors of law or has failed to take into account relevant matters already placed before the court, or that his decision is otherwise plainly wrong.

17.  Thirdly, in an appeal against refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward for reversing the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it were a fresh application for judicial review.

18.  In light of the above, it is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing his application for leave.

19.  As mentioned earlier, the applicant did not, either in his Notice of Appeal or written submissions, identify any specific error in the Deputy Judge’s Decision.  There is simply no proper ground of appeal raised against the Deputy Judge’s Decision.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision.  We can detect no error of law, procedural impropriety or irrationality in those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

20.  For these reasons, the applicant’s appeal has no merits and is dismissed.