RE PANDEY SUNIL KUMAR

CACV 373/2022, [2023] HKCA 678

On Appeal From [2022] HKCFI 2690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 373 OF 2022

(ON APPEAL FROM HCAL 2926 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To (“the Deputy Judge”)  set out in the Form CALL-1 dated 1 September 2022, by which the Deputy Judge, inter alia, refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 2690).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 17 December 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 8 November 2017 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  On 9 September 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

4.  By a Request for Dismissal of Appeal dated 29 December 2022, the applicant requested to withdraw the present appeal.

5.  On the basis of his request to withdraw his appeal on 29 December 2022, we dismiss the applicant’s appeal.  In any event, his appeal fails for the lack of merit, which we will explain further below.

Background

6.  The applicant is a national of India.  He last arrived in Hong Kong on 29 November 2014 and was permitted to remain as visitor until 13 December 2014.  He did not depart and overstayed.  On 16 December 2014, he was arrested by the police and was transferred to the Immigration Department on 17 December 2014.  On 17 December 2014, he raised a non-refoulement claim on the basis that he will be harmed or killed by his uncle, Bholanath, Rahul Sen and Ajay Prajapati owing to a land dispute.  Factual details of his non-refoulement claim were summarised by the Deputy Judge at [5] - [15] of the Leave Decision.

7.  As noted by the Deputy Judge at [1] and [16] - [17] of the Leave Decision, by their decisions respectively dated 8 November 2017 and 17 December 2018, the Director and the Board dismissed his non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate his non-refoulement claim on all applicable grounds.  In particular, in dismissing his appeal against the Director’s Decision, the Board found the applicant was not a credible witness and did not accept that the applicant had a land dispute with his uncle as alleged.  The Board found on the evidence that the applicant failed to discharge his burden of proving the factual basis to support his non-refoulement claim.

The Leave Decision

8.  On 20 December 2018, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision on the basis that they disregarded the danger and threats he would face in his home country should he be returned.[5]  As he did not request for an oral hearing, the Deputy Judge considered his application on paper.

9.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out in detail at [20] - [22] of the Leave Decision:

“20. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is challenging the Board’s finding of fact that he would not face any real harm or risk if returned to India, which is impermissible except for error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

21. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board found the Applicant to be an untruthful witness who had fabricated his case in an attempt to enhance his claim for protection and to extend his stay in Hong Kong. It rejected his account because of the numerous and significant inconsistencies in his evidence. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the three remaining grounds under the USM. Basically, the Applicant failed to discharge his burden of proving his fears and risks. This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

22.   For the above reasons, leave to apply for judicial review was refused.”

The Appeal

10.  On 9 September 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision.  In his Notice of Appeal, the applicant claimed that the Director had failed to appreciate or give proper weight to state acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim.  The applicant further complained that the Director, the Board and the Court had failed to take his argument of state acquiescence into account.  The applicant also complained that the Board failed to make sufficient enquiry before finalising its decision and that the Director “while referring to relevant COI’s kept including meaning which suited [his] pre-conceived conclusion” which was unfair to the applicant.

11.  Contrary to the directions of the Registrar of Civil Appeals dated 9 September 2022, the applicant failed to lodge two sets of appeal bundle.

12.  As mentioned above, by a Request for Dismissal of Appeal dated 29 December 2022, the applicant requested to withdraw the present appeal.

Discussion

13.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

15.  At the outset, it is noted that the applicant’s complaints are mainly directed at the Board and the Director and do not point out any specific errors in the Leave Decision.  Further, his complaints are also all general and vague without specific particulars or evidence in support and do not constitute proper grounds of appeal.  On this basis alone, his appeal must fail.

16.  In any event, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As correctly noted by the Deputy Judge, the Board found on the evidence that the applicant was not credible because of the significant inconsistencies in his evidence and that he failed to discharge his burden of proving his fears and risks as alleged.  We agree with the Deputy Judge that there was no error of law or irrationality or procedural unfairness in the proceedings before the Board and we see no basis to interfere with the Leave Decision.

17.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.