RE JASVIR SINGH

CACV 33/2023, [2024] HKCA 636

On appeal from [2023] HKCFI 322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 33 OF 2023

(ON APPEAL FROM HCAL 889/2019)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 3 February 2023 refusing leave to the applicant 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 (“the Board”) dated 28 February 2019[1] (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 June 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India. He entered Hong Kong illegally on 14 November 2016 and surrendered to the Immigration Department on the same day.  Subsequently, he lodged a non-refoulement claim by way of a written representation dated 3 February 2017.

3.  The applicant’s claim was based on a fear of being harmed or killed by the family of his girlfriend, Sariti, for allegedly bringing dishonour onto them.  The details of the applicant’s claim have been summarised by the Judge at [1] to [5] of the Judge’s decision (“the CALL-1 Form”)[2].

4.  By a Notice of Decision dated 15 June 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[3], the BOR 3 risk^[4], the persecution risk^[5] and the torture risk^[6].

5.  The applicant appealed to the Board.  After a hearing on 13 February 2019, the Board dismissed the appeal on 28 February 2019 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that the inconsistencies and contradictions in the applicant’s evidence rendered his account of events, on which his alleged threat of harm was said to be based, unreliable and incredible.  In any event, the Board found that state protection as well as viable options of internal relocation were available to the applicant.

The Judge’s decision

6.  The applicant filed a Form 86 on 1 April 2019 seeking to judicially review the Board’s Decision.

7.  In the applicant’s supporting affirmation, he stated that he did not agree with the Board’s Decision, and that he could not return to his home country because his life would be in danger.

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [10] to [14] of the CALL-1 Form:

“10.  On 1 April 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 or in his supporting affirmation of the same date in which he just stated that he is not satisfied with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim 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.

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 assessment of the Applicant’s claim.

14.  In the premises, as I am for the reasons given 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.”

Grounds for appeal

9.  In the Notice of Appeal dated 7 February 2023, the applicant expressed his disagreement with the Judge’s decision, but merely claimed, without elaboration, that the Judge “did not consider” that the Board and the Director “did not screen truly”.  

10.  The applicant lodged written submissions on 21 February 2023, which contained no more than repetitions of the alleged dangers he may face should he be refouled.  He submitted that as he was not wealthy, it would not be possible for him to receive adequate human rights protection in India.  He also claimed that the Board “did many wrong”, without particulars or elaboration on why that might have been the case.

11.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

12.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

13.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

14.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

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