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CACV 423/2021
[2021] HKCA 1815
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 423 OF 2021
(ON APPEAL FROM HCAL 2784/2018)
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| RE: |
GAWADE AMOL BHAGAWANT |
Applicant |
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Before: Hon Barma JA and Lisa Wong J in Court
Date of Hearing: 22 November 2021
Date of Judgment: 6 December 2021
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge KW Lung (“judge”) given on 27 July 2021 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 (“Board”) dated 3 December 2018 (“Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 30 January 2018 rejecting the applicant’s non-refoulement claim (“Director’s Decision”)[1].
Background
2. The applicant is a national of India. He last arrived in Hong Kong on 17 April 2015 and was permitted to remain as a visitor until 1 May 2015. He overstayed and surrendered to the Immigration Department on 4 May 2015. Thereafter, he lodged a non-refoulement claim on 9 September 2015.
3. The applicant’s claim was based on threats of death and harm by various clients of his former employer, a bank. Allegedly, the applicant’s supervisor absconded with the clients’ money and could not be found and the clients pursued him for the money. The details of the applicant’s claim have been summarised by the judge at [4] and [5] of the judge’s decision[2].
4. By a Notice of Decision dated 30 January 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 14 September 2018, the Board dismissed the appeal on 3 December 2018 (i.e. the Board’s Decision). The Board’s Decision covered all four grounds for non-refoulement protection. The Board found no evidence to suggest that the applicant’s clients intended to kill or seriously harm him, and that the only instance of violence inflicted on the applicant was an isolated incident. Thus, he would face no real risk of harm if refouled.
The judge’s decision
6. The applicant filed a Form 86 on 6 December 2018 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.
7. In his supporting affirmation filed on the same date, the applicant deposed:
“I would like to reject and set aside the decision made by the Immigration Department[7], they disregard the danger and threats I face in my country should I be deported.”
8. After summarizing the facts and background of the case and 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 [6] to [17] of the CALL-1 Form:
“6. The Director considered his application in relation to the following risks:
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (‘the Ordinance’) (‘Torture risk’);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (‘BOR 2 risk’);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (‘CIDTP’) under Article 3 of section 8 of the HKBOR (‘BOR 3 risk’); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (‘Refugee Convention’) (‘Persecution risk’).
7. By Notice of Decision dated 30 January 2018 (‘the Director’s Decision’), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no ground for believing that he would be subjected to any real risk of being harmed or killed if he returned to India [14]; that state protection was available to him [18] and that internal relocation was an option open to him [26].
The Board’s Decision
8. The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 14 September 2018.
9. By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board did not challenge his evidence on the facts. However, the Board considered that the monetary dispute was between his boss and his clients and there was no evidence to show that his clients intended to kill or harm him seriously and the treatment he had received from his clients did not fall within the meaning of torture under section 37U (1) of the Ordinance [37-41]; that state protection would be available to him [42]; and that for the same reasons, his claim under BOR 2, BOR 3 and Persecution risks also failed; and that internal relocation was an option open to him [50-55].
Application for leave to apply for judicial review
10. The applicant filed Form 86 on 6 December 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, he said that the Board had disregarded the dangers and threats he faced in his country.
DISCUSSION
12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
’13 …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 (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.’
14. His ground in support of this application does not assist his application.
15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.
CONCLUSION
17. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.”
Grounds for appeal
9. In the Notice of Appeal filed on 1 September 2021, the applicant stated that he:
“…will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognised, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”
10. The applicant did not file an affirmation in support of the Notice of Appeal.
11. In his written submissions dated 22 October 2021, the applicant referred to ST v Director of Immigration (sic)[8] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.
12. We heard the appeal on 22 November 2021. The applicant appeared at the hearing but had nothing to add to the matters already stated in his Notice of Appeal and written submissions.
Discussion
13. The grounds of appeal set out in the Notice of Appeal are solely directed at the Board regarding materials which it allegedly should not have taken into consideration in reaching its Decision.
14. The applicant has therefore failed, in the notice of appeal or the written [or oral submission] before us, to identify any error of law by the judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
15. Turning to the written submissions and the well-established legal principles cited therein, there was no attempt by the applicant to elaborate on whether and, if so, how they had not been applied in the processing of his non-refoulement claim.
16. In any event, the grounds advanced by the applicant are vague and lack particulars. These grounds should also be dismissed for this reason.
17. Further, we have anxiously scrutinised the Board’s Decision and the judge’s decision and are satisfied that they are both in order.
18. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the Court of
First Instance |
The applicant appeared in person
[1] The applicant appears to have stated in his Form 86 filed on 6 December 2018 that the decision in respect of which relief was sought was the Director’s Decision. However, the applicant also named the Board as the proposed respondent. On the other hand, in his supporting affirmation filed on 6 December 2018, he stated that he would like to set aside the Director’s Decision, but in fact exhibited a copy of the Board’s Decision. The judge in his decision dated 27 July 2021 dealt with the leave application on the basis that it was made in respect of the Board’s Decision, and this court will likewise determine the present appeal on this basis.
[2] [2021] HKCFI 2152
[3] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[6] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[7] See footnote no.1 above.
[8] The correct citation should be ST v Betty Kwan.
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