RE MADHASHIYA VINAY

CACV 171/2023, [2023] HKCA 1285

On Appeal from [2023] HKCFI 1304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 171 OF 2023

(ON APPEAL FROM HCAL 849/2019)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

THE APPEAL

1.  This is the applicant’s appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 24 May 2023 (“Judge’s Decision”) refusing him leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 21 March 2019 (“Board’s 2^nd Decision”) which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) under one of the applicable grounds for non-refoulement protection, namely “BOR 2” risk[1].  Such rejection was embodied in, and communicated to the applicant by, a notice of further decision dated 13 April 2017 (“Director’s 2^nd Decision”).

BACKGROUND

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of India now aged about 31, is a fear of being harmed or killed by members of the Samajwadi Party (“SP”), in particular, an individual named Bharat Yadav (“Yadav”), because the applicant (1) supported the rival Bharatiya Janata Party (“BJP”) and (2) had made a complaint to the police regarding alleged bogus votes cast by SP supporters in a village-head election.

3.  The circumstances giving rise to such alleged fear have been set out in detail in paragraphs 5 and 6 of the Director’s decision dated 11 May 2016 (“Director’s 1^st Decision”) and paragraphs 8 and 9 of the Board’s decision dated 31 August 2016 (“Board’s 1^st Decision”) and in gist in [4] and [5] of the Judge’s Decision embodied in the Form CALL-1 dated 24 May 2023[2] (“Form CALL-1”).

Failed Attempt to Land in Hong Kong and Lodgment of NRF Claim

4.  The applicant attempted to enter Hong Kong on 25 February 2016, but was refused permission to land.  On 26 February 2016, he was transferred by the Immigration Department to the Castle Peak Bay Immigration Centre, where he was detained pending his deportation from Hong Kong.

5.  The applicant raised the NRF Claim by written representation on 25 February 2016. He subsequently completed and lodged a non-refoulement claim form on 24 March 2016 (“NCF”).

Director’s Decisions

6.  In processing the NRF Claim, in addition to the NCF, the Director’s representative(s) conducted a screening interview with the applicant on 15 April 2016 (“Interview”).  The applicant then had legal advice and representation from the Duty Lawyer Service.

7.  The Director:

(1)  by his 1^st Decision, found the NRF Claim unsubstantiated under 3 applicable grounds for non-refoulement protection namely, torture risk[3], persecution risk[4] and “BOR 3” risk[5]; and

(2)  by his 2^nd Decision, found the NRF Claim unsubstantiated under the remaining ground for non-refoulement protection namely, “BOR 2” risk.

Appeals to Board and Board’s Decisions

8.  The applicant appealed against the Director’s 1^st Decision to the Board.

9.  The Board conducted a rehearing of the NRF Claim based on torture risk, persecution risk and “BOR 3” risk on 15 August 2016.  The applicant was present and was provided with an interpreter to testify before, and answer questions by, the Board.

10.  By the Board’s 1^st Decision, the Board dismissed the applicant’s appeal against the Director’s rejection of the NRF Claim based on torture risk, persecution risk and “BOR 3” risk for the following reasons:   

(1)  There was no reliable evidence to establish that the applicant had been an authorised worker for the BJP in the 2015 village-head election.  He was no more than an ordinary supporter of the BJP at the grass-root level in his home state of Uttar Pradesh.

(2)  It was improbable that the applicant had made a report to the police concerning bogus votes cast by supporters of the SP.

(3)  There was no basis to suggest that the applicant would be targeted or singled out for persecution by certain members of the SP.

(4)  On the evidence, the applicant did not suffer physical and/or mental harm to the requisite degree of severity.

(5)  Yadav was a non-state actor.  There was no evidence to suggest any state involvement in any alleged ill-treatment of the applicant.

11.  The applicant also appealed against the Director’s 2^nd Decision to the Board.  In support of the appeal, the applicant submitted to the Board a document dated 26 September 2016, which purportedly contained additional material relating to the NRF Claim based on “BOR 2” risk, including a new assertion that the applicant had been informed by a friend that his younger brother had been attacked by a member of the SP with a butcher’s knife for refusing to reveal the whereabouts of the applicant.

12.  The Board decided that an oral hearing of the applicant’s appeal against the Director’s 2^nd Decision was not necessary.

13.  The Board dismissed the appeal against the Director’s 2^nd Decision on the remaining ground for non-refoulement protection (i.e. “BOR 2” risk) for the main reason that, adopting the findings in its 1^st Decision, there is no evidence to establish any risk of harm to the applicant by capital punishment or otherwise from the Indian government.  The Board considered, but was not prepared to attach any weight to, the new assertion that a member of the SP had assaulted the applicant’s brother for refusing to disclose the applicant’s whereabouts.  Such allegation was based on hearsay.  The Board had no chance to question, or test the veracity of, the unnamed friend who supposedly informed the applicant of the alleged attack of his brother.

Application for leave for judicial review and Judge’s Decision

14.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 849/2019 on 27 March 2019 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s 2^nd Decision[6] without putting down any proposed ground for judicial review.

15.  In the supporting affirmation filed on the same day, the applicant merely attached a copy of the Board’s Decision, but did not state the basis or ground of his intended judicial review.

16.  The applicant did not ask for an oral hearing.  After considering the papers before him, the Judge refused to grant leave to apply for judicial review of the Board’s 2^nd Decision for the reasons set out at [15] – [21] of the Form CALL-1:

“15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

18.  The Board had considered the Board’s First Decision, which deals with the main facts of the applicant’s claim.  It had also considered the additional facts raised by the applicant.  It had come to its conclusion to dismiss the applicant’s appeal against the Director’s Second Decision. There is no valid ground from the applicant to challenge the Board’s Second Decision.

19.  The Court does not find any error of law or procedural unfairness in the Board’s Second Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

21.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision.  Accordingly, I dismiss his application.”

GROUNDS OF APPEAL

17.  By the notice of appeal filed herein on 6 June 2023, the applicant appealed against the Judge’s Decision on 2 grounds:

(1)  “Ground 1” - He would face “hardship” if refouled to India.

(2)  “Ground 2” - The Board had made groundless speculations as a result of relying on non-officially recognised or hearsay source of news and outdated cases.

18.  Further, by the written submission dated 28 September 2023, the applicant raised numerous complaints against the Director, the Board and the Judge.  In gist, it is suggested that:

(1)  The court and “authorities” (taken to mean the Director and the Board) did not exercise “caution and diligence” in processing his case.

(2)  The Judge failed to acknowledge the applicant’s “language incapability” and that he was not provided with legal representation.

(3)  The Judge failed to “exercise a diligent duty of care” towards him as a litigant-in-person.

(4)  The “authorities” failed to consider that he was “traumatised by the problems in [his] home country” and that he had no right to work in Hong Kong, therefore he could not afford legal representation.

19.  The applicant exercised his right to have an oral hearing of the appeal, which was held on 25 October 2023.  He appeared in person.  Instead of advancing any submission in further support of his appeal, the applicant merely asked if he can produce some documents from India later. 

RELEVANT LEGAL PRINCIPLES

Court of First Instance’s Role in Judicial Review in Non-refoulement Claims

20.  The primary decision-makers in a claim for non-refoulement protection are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s Approach in Appeals against Refusal of Leave for Judicial Review in Non-refoulement Claims

21.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will not normally entertain any new arguments that are fact sensitive and should have been raised in the court below.  The Court of Appeal shall interfere if and only if the judge had erred in law or failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

DISCUSSION

22.  First, as noted in [14] and [15] above, the applicant had not, in either the Form 16 or the supporting affirmation, set out any proposed ground for judicial review.  It also follows that none of the matters now sought to be raised as grounds of appeal against the Judge’s Decision had been raised before the Judge.  That being the case, we do not see how the Judge can be faulted for refusing leave.  The appeal can be dismissed on this basis alone.

23.  In any event, neither the applicant’s notice of appeal nor submission shows any merits. 

24.  Ground 1 merely reiterates the applicant’s much repeated allegation that he would suffer hardship upon return to his home country.  The question whether the applicant would be at risk of life or torture upon being refouled to India is a question of fact within the province of the Board (after the Director).  The Board had twice dismissed this allegation.  Focusing on the Board’s 2^nd Decision, having regard to the findings that it had made in its 1^st Decision, the Board at [18] to [19] of its 2^nd Decision rejected the applicant’s claim of “hardship” essentially because the material aspects of his evidence relating to the alleged fear of harm from the SP is incredible.

25.  Further, although India has not abolished the death penalty, BOR 2 does not bar the refoulement of an individual to a state that practises capital punishment. The applicant has not shown any exposure to harm arising from capital punishment imposed by the Indian government.

26.  Ground 2 also fails. First, it targets the Board rather than the Judge.  Second, the applicant has not particularised the groundless speculations that he said the Board had made or pinpointed the news or cases that wrongly led the Board to such speculations.

27.  Turning to the complaints made in the written submission, leaving aside the general vagueness and lack of particulars, we are especially unmoved by the applicant’s complaint of prejudice caused by his lack of legal representation.  As this Court has repeatedly held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  In this connection, we note that the applicant was legally represented during the processing of his NRF Claim by the Director.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

28.  There is also no merit in the applicant’s complaint of lack of language assistance, as he had been assisted by an interpreter at both stages of the Unified Screening Mechanism (i.e. the completion and submission of the NCF, the attendance at the Interview and the hearing before the Board on 15 August 2016).  Further, we note that the applicant was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.  We cannot see any prejudice caused to the applicant in the processing of his claim by reason of his alleged lack of, or insufficient, proficiency in English.

29.  In short, the applicant has failed 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.

30.  In any case, we have anxiously scrutinised the Board’s Decisions and the Judge’s Decision and are satisfied that all are in order.

DISPOSITION

31.  For the above reasons, we see no basis for interfering with the Judge’s Decision.  The appeal is accordingly dismissed.