RE PANNU GURPREET SINGH

CACV 244/2019

[2019] HKCA 1025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2019

(ON APPEAL FROM HCAL 584/2018)

________________________

__________________________

________________________

JUDGMENT

________________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 31 May 2019 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of India.  He arrived in Hong Kong on 5 July 2014 and was permitted to remain as a visitor for 14 days.  He did not depart upon the expiry of his permission to remain, and overstayed illegally since 20 July 2014.  He was arrested by the police on 9 February 2015.  He lodged his claim for non-refoulment protection by way of written representations on 1 June 2015 and 8 June 2015.  He was later convicted of offences of possession of an identity card belonging to another person and of breach of stay condition.  He was sentenced to 12-month imprisonment.  He was arrested again on 7 April 2017, and was convicted of offences of possession of an identity card belonging to another person and taking employment while being a person in respect of whom a removal order was in force.  He was sentenced to 15-month imprisonment on 9 June 2017. 

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed, or even be killed, by his uncle because of a land dispute between them.  The background facts of this case were summarized by the Judge in [2] – [7] of the Form CALL‑1 ([2019] HKCFI 425).

4.  By a notice of decision dated 31 October 2017, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4].

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 19 March 2018, and the applicant elected to testify thereat.  After considering all the evidence of the case, the Board found that the applicant’s uncle had no intention to carry out his threat of killing the applicant at all.  The Board also did not believe that he left India because of the land dispute as it was as good as giving up the land.  Since the applicant had never reported the matters to the police, it was pure speculation that the police would not render any assistance to him if he did.  The Board did not find any substantial grounds for believing that the applicant would be subject to harm or ill-treatment if refouled.  It also considered that internal relocation was a viable option for the applicant.  By a decision dated 6 April 2018[5], the Board dismissed the applicant’s appeal/petition.

The judge’s decision

6.  The applicant filed his Form 86 on 9 April 2018, seeking leave to apply for judicial review against the Director’s and the Board’s decisions.  The grounds as set out by the applicant in Form 86 were summarized by the Judge at [13] of the Form CALL-1.

7.  An oral hearing was held by the Judge on 29 January 2019.

8.  As mentioned earlier, the Judge refused to grant leave to apply for judicial review.  His reasons in refusing leave were set out in [14] – [18] of the Form CALL-1 as follows:

“ 14. These are however just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way were their decisions unfair or unreasonable, or what relevancy was extra-judicial killings to his case, or how did the adjudicator fail to give him sufficient time or opportunity to produce evidence in support of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant who at the hearing of his application now before me did not make any further submission or adduce any further evidence which he claimed not to have been given time or opportunity to do by the adjudicator. In the premises I do not find any basis or merits in any of these complaints of his.

15. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

16. In the applicant’s case, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

18.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The appeal

9.  On 3 June 2019, the applicant filed a notice of appeal against the Judge’s decision.  In the notice, the applicant advanced the following grounds of appeal:

“ I am not satisfied with the decision because I have problem in my own country. Please help me to stay in Hong Kong until I have problem.” (sic)

10.  The applicant lodged his written submission on 22 July 2019.  The applicant stated that he was not satisfied with the Board’s decision.  He reiterated his fear of harm.  It was asserted that the political party and the police in his home country could do whatever they liked.  He also repeated that his enemies could find him if refouled.  He asked the Court to allow him to stay in Hong Kong so that he could save his life.

11.  By a letter dated 3 June 2019, the applicant gave consent to this appeal being heard by a 2-member court.

12.  We heard the appeal on 3 September 2019.

General principles

13.  Before we address the merits of this appeal, we would highlight some general propositions that this Court has adopted in determining an appeal for non-refoulement cases. 

(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)     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. 

Discussion

14.  In the present case, the Board was not satisfied that the applicant would face a real risk of harm if refouled.  As explained above, assessment of risk of harm is within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on public law grounds.  After rigorous examination and anxious scrutiny of the Board’s decision, the Judge found no realistic prospect of success to challenge the findings of the Board in the intended judicial review.

15.  As explained above, it is not the function of judicial review, and still less in an appeal against a refusal of leave to apply for judicial review, to seek the Court’s reassessment of his case afresh as if we were the primary decision maker. 

16.  Nor is the Court empowered to grant a permission to remain in Hong Kong in place of the Director.

17.  In our view, nothing stated by the applicant in the notice of appeal or in his written submission constitutes a valid public law ground to disturb the decision of the Board.

18.  Having reviewed the materials before us, we cannot see any error on the part of the Judge.  We agree with the Judge that leave to apply for judicial review should be refused.

19.  For these reasons, we dismiss the appeal.