RE RAJBIR SINGH

CACV 348/2020

[2021] HKCA 177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 348 OF 2020

(ON APPEAL FROM HCAL 2885/2018)

__________________________

__________________________

______________________

JUDGMENT

______________________

Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 30 July 2020, Deputy High Court Judge K W Lung (“the Judge”) refused 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 (“the Board”) dated 13 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 17 May 2017 rejecting the applicant’s non-refoulement claim.

2.  On 11 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  On both 25 and 26 January 2014 he travelled to Hong Kong from Macau, was refused permission to land and was removed back to Macau.  On 27 January 2017 he arrived in Hong Kong again and raised a non-refoulement claim on that date. 

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his uncle and his men because the applicant refused to vote for the Shiromani Akali Dal party.  The factual background was succinctly summarized by the Judge at [5] of the Form CALL-1 ([2020] HKCFI 1746).

5.  By notices of decision dated 11 February 2015 and 17 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The former decision covered the grounds of BOR 3 risk[1], persecution risk[2], torture risk[3], while the latter covered BOR 2 risk[4].

6.  The applicant made separate appeals to the Board against the Director’s decisions.  For the appeal against the Director’s decision dated 11 February 2015, an oral hearing was held on 14 October 2016 at which the applicant elected not to give oral evidence.  The Board found the applicant’s evidence not credible and that he had not made out a case for non-refoulement protection.  Therefore, the Board took the view that there was no real risk of harm in the event of refoulement. The Board also concluded that state protection was available and internal relocation was viable.  On 28 April 2017 the Board dismissed the applicant’s appeal against the Director’s decision dated 11 February 2015 on the grounds of BOR 3 risk, persecution risk, and torture risk.

7.  As regards the Director’s decision dated 17 May 2017 on BOR 2 risk, the Board did not conduct an oral hearing for that appeal.  The Board relied on its findings in its decision of 28 April 2017 and determined that there was no real risk of harm. Thus on 13 December 2018 the Board dismissed the applicant’s appeal against the Director’s decision dated 17 May 2017.

Decision of the court below

8.  On 17 December 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision of 13 December 2018.  In his affirmation in support of his Form 86, the applicant stated that it was procedurally unfair that he was not provided with legal representation and language assistance for his appeals to the Board.  The applicant also stated in that affirmation that the lack of an oral hearing before the Board for the appeal on BOR 2 risk was illogical and unfair, and that the Board should not have made findings on credibility without assessing the applicant in person.

9.  There was a hearing on 16 January 2020 at which the applicant attended in person before the Judge.  On 30 July 2020, the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [13] – [16] of the Form CALL-1 ([2020] HKCFI 1746, HCAL 2885/2018) as follows:

“ 13.     The applicant appeared before me. He confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator. His duty lawyer had explained the Director’s Decision to him and the interpreter of the Board had explained the Board’s Decisions to him. He had no comments on the Board’s findings.

14.     In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.     There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

16.     The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to this Court

10.  On 11 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which he raised the following grounds:

(1)     the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case, which led to an unfair outcome of rejecting his claim;

(2)     the Director, the Board and the Judge failed to take such argument into account, or the Director failed to give sufficient weight to such argument before making his decision;

(3)     the Board failed to make sufficient enquiry before finalizing its determination;

(4)     the Board failed to give the applicant sufficient opportunity to arrange relevant evidence for his claim/appeal; and

(5)     this was a clear case of unfair attitude by the Director.

11.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be heard by 2 judges.

12.  The applicant lodged his written submissions on appeal on 13 January 2021.  Those submissions consist largely of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.  At paragraph 5 of his submissions, he contended that the Board acted in a procedurally unfair manner by failing to properly assess his credibility.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of 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].  For the purpose of this appeal, the salient principles are as follows:

(1)     The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)     An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

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

Discussion

14.  In the present case, the Board rejected the applicant’s appeal based on its adverse finding on the applicant’s credibility. The Board determined that there was no real risk of harm in the event of refoulement and concluded that state protection was available and internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

15.  Grounds (1) to (3) raised in the Notice of Appeal were premised on arguments on state acquiescence which had not been raised in the Form 86 nor in the arguments before the Judge.  We are not minded to entertain such new grounds.  In any event, in light of the Board’s rejection of his evidence, there was no foundation for any contention based on state acquiescence to be advanced.

16.  His other grounds related to the fairness of the proceedings before the Board.  He had legal representation when the case was processed by the Immigration officer.  He was given an oral hearing in his first appeal before the Board at which he chose not to give evidence.  In the circumstances, the absence of oral hearing in the second appeal was not inherently unfair.

17.  In the circumstances, the applicant had to raise specific aspects with regard to the Board’s reasons for rejecting his evidence in the first appeal[5] which had occasioned unfairness in the processing of his case.  The applicant has not done so and his contention of unfairness is therefore untenable.

18.  When he appeared before the Judge, the Board’s Decision was explained to him.  He confirmed before the Judge he had no cause for complaint in respect of the fairness of the proceedings.

19.  Having considered the materials before us, we are of the view that the Judge is plainly right in refusing leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

20.  For these reasons, this appeal is dismissed.