RE SATISH KUMAR

CACV 524/2021

[2022] HKCA 972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 524 OF 2021

(ON APPEAL FROM HCAL NO 1148 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 17 November 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 1 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 15 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is an Indian national.  He last arrived in Hong Kong on 30 September 2013, and was permitted to remain as a visitor until 2 October 2013.  He did not depart, and overstayed.  He surrendered himself to the Immigration Department on 13 January 2014, and stated that he had approached the UNHCR for assistance on 6 January 2014.  He raised his non-refoulement claim on 9 April 2014.

3.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by gangsters who had ties to the Shiromani Akali Dal Party and the police in Punjab. The factual background was set out at [41] to [72] of the Board’s decision. 

4.  By notice of decision dated 15 February 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  Those applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 30 May 2018, during which the applicant answered questions from the Board, with a Punjabi language interpreter present.  The Board found that much of the applicant’s evidence was not credible because his oral evidence during the hearing was vague and general, he was evasive in answering questions, and was not forthcoming with providing details.  The Board noted that the applicant “displayed obvious unwillingness to be engaged in the process of enquiry”. Also, the applicant frequently stated that he could not recall when asked for details of his narrative or when questioned about inconsistencies between his oral evidence and his claim form and Board appeal notice.  There were also significant discrepancies between the applicant’s narrative in his Non-refoulement Claim Form and his narrative in his Notice of Appeal/Petition which were not satisfactorily explained.  The Board concluded that it did not accept that the two men with whom the applicant fought in 2013 continued to harass him or were members or supporters of the Shiromani Akali Dal Party or members of any well-organised gang.  In any event, the Board considered that even on the applicant’s narrative, he had not suffered any serious harm.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that a reasonable level of state protection would be available to the applicant upon his return to India and that there were safe options for his relocation even within Punjab, as well as in Delhi and Mumbai.

6.  As a result, in its decision issued on 1 June 2018 the Board dismissed the applicant’s appeal in relation to all the applicable grounds.

Decision of the court below

7.  On 20 June 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation he stated that he was not satisfied with the Director’s decision, but did not raise any specific grounds for judicial review.

8.  Following consideration of documents only, on 17 November 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [17] of the Form CALL-1 as follows:

“ 12. 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14. 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.’

15. He has submitted no valid ground to assist his application. The Board has reject his evidence on the essential facts in support of his claim. He therefore has no factual basis in support of his claim.

16. 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.

17.     There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.” [sic]

Appeal to this Court

9.  On 24 November 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that the decision departed from the facts and reality related to his case, and that there was no transparency in the decision.  However, he did not provide any details or particulars for these allegations.

10.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

11.  In the applicant’s written submissions lodged for this appeal, he submitted that his life would still be in danger if he were to return to his country, that matters related to his case were ignored, and that conditions in his country are much different than what is thought.

12.  The applicant further submitted that he cannot protect himself from his enemies and neither can the police, due to his enemies’ manpower and strong political support, and that death and torture in custody are common in his country, along with corruption and impunity.

13.  However, in those submissions the applicant did not provide any details or particulars in support of the above arguments.

Discussion

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, 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 to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

15.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due in part to its adverse finding on his credibility, and also due to its finding that even on the applicant’s narrative, he had not suffered any serious harm.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that a reasonable level of state protection was available and that internal relocation was viable.  Such findings are within the province of the Board.  The court will not interfere with the Board’s assessment on these matters in the absence of any public law grounds properly made out. 

17.  The applicant has not raised any errors or concerns as regards the Board’s assessment of credibility.  We can see no valid public law ground for interfering with the Board’s assessment.  In any event, the availability of state protection and reasonably safe internal relocation is fatal to the claim.  We are of the view that the Judge was right to refuse leave to apply for judicial review of the Board’s decision.

18.  For these reasons, the appeal is dismissed.