RE SONI PRASHANT

CACV 558/2019

[2020] HKCA 356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 558 OF 2019

(ON APPEAL FROM HCAL 2883/2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 27 November 2019 refusing leave to apply for judicial review (“the Decision”).  The intended judicial review was against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 11 December 2018 and against the decision of the Director of Immigration (“the Director”) dated 10 May 2018, rejecting the Applicant’s non-refoulement claim.

Background

2.  The Applicant is an Indian national.  He entered Hong Kong as a visitor in January 2016 and was allowed to stay until 24 January 2016.  He overstayed and surrendered to the Immigration Department on 12 February 2016.  He lodged his non-refoulement claim on 7 June 2016.

3.  The Applicant’s claim was based on threats from two of his business suppliers, Rameshwer Soni and Kamal Soni (“R & K”), who allegedly harassed the Applicant because they believed the Applicant had stolen their jewelries.  The Applicant claimed that he would be ill-treated by R & K if he were refouled.  The details of the Applicant’s claim have been summarized by the Judge at [3] to [4] of the Form CALL-1 ([2019] HKCFI 2890).

4.  By a notice of decision dated 10 May 2018, the Director rejected the Applicant’s claim.  The Director’s decision covered the torture risk[1], the BOR 2 risk[2], the BOR 3 risk[3] and the persecution risk[4].

5.  The Applicant appealed to the Board.  After a hearing on 14 September 2018, attended by the Applicant, the Board rendered its decision refusing the appeal on 11 December 2018.  The Board’s decision covered all four grounds for non-refoulement protection.

The Judge’s Decision

6.  The Applicant filed a Form 86 on 17 December 2018 to seek leave to apply for judicial review of the Director’s decision and the Board’s decision.

7.  The Judge summarized the Applicant’s grounds for judicial review as set out in his affirmation dated 17 December 2018 at [11] of the Form CALL-1 as follows:

(1)  He was not provided with language assistance;

(2)  He was not provided with legal assistance for this application – breach of high standard of fairness and he was unable to have the reasoning;

(3)  The Director rejected his claim on a uniform approach and a template basis;

(4)  The adjudicator did not give any explanation why he was not satisfied that he would face harm upon return to India;

(5)  The Board erred about state protection, which was not available to him; and

(6)  Internal relocation is not a viable option to him; the Board had not taken into consideration the difficulties he might have to face in other cities.

8.  Upon the Applicant’s request, an oral hearing was held on 10 May 2019.

9.  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 for his decision at [12] – [21] of the Form CALL-1 of 27 November 2019:

“ 12.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘ 45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

13.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

14.  The applicant appeared before me. He confirmed that he was able to express and tell his story to the Immigration Officer and the Adjudicator freely and fully. He was able to read English himself. His lawyer had explained the Director’s Decision to him. He could read the Board’s Decision himself.

15.  The Board did not challenge him on the facts that he was being chased by the supplier for the return of the jewelries and that he might have been beaten up by the supplier’s people and that the police had made investigation into the matter and they suspected him of the loss of the jewelries. It is therefore a question of the application of the relevant statutory provisions and the Convention to those facts.

16.  Ground (1) is inconsistent with what he said before this Court. He admitted that he could read English himself.

17. He does not have the absolute right of free legal representation at every stage of the proceedings as he had already had legal representation at the screening stage. Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22. Ground (2) fails.

18.  Grounds (3), (5) and (6) are his opinions without any evidence in support of them. They do not stand.

19.  Grounds (4) is not true. The Board’s Decision has set out the reasons for its conclusion that he would not be subjected to any harm back in India. That fact that police had made investigation into the matter is a clear indication that police will provide protection for him.

20.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

21.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review.  Accordingly, I dismiss his application.”

The Appeal

10.  On 5 December 2019, the Applicant filed a Notice of Appeal against the Judge’s Decision.  In the Notice, the Applicant did not specify any grounds of appeal, but simply stated that the application for leave to apply for judicial review was “refused without any valid reason” and that, given the Applicant’s “problem” in his country, he needed “extension until my family solved my problems”.

11.  In the written submission submitted by the Applicant on 2 January 2020, he raised a number of arguments in bullet point form, without providing any particulars for any of those arguments.  There was also not explanation on how those arguments related to the facts of the present case.  Indeed, it appears that the arguments were taken from other cases for judicial review.  In several respects they are wholly irrelevant and bear no relation to the matters at hand.  For example, in point (VI), the Applicant complained about the Board’s failure to advise him to obtain evidence from “pakistan authorities”.  This is clearly irrelevant as the Applicant’s home country is India and the present case has no connection with the state of Pakistan.

12.  With reference to Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 and C v Director of Immigration v United Nations High Commissioner for Refugees (2013) 16 HKCFAR 280, the Applicant raised some questions to the Director of Immigration without explaining how these questions could take his case further.  Nor did he explain why this Court should address such questions when they were not issues before the court below.  

13.  We heard the appeal on 19 May 2020.

Legal Principles

14.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeals in 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 the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin information (“COI”) materials, 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, 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 before, and rejected, by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489.

(4)  In respect of new argument, this court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(5)  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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

See: Nupur Mst v Director of Immigration [2018] HKCA 524, at [14].

Discussion

15.  In his written submissions, the Applicant sought to raise a number of general arguments which have not been canvassed before the Judge.  There is no reason why this Court should entertain such new arguments by way of general discussion.  As explained above, the Applicant did not explain how those new arguments related to the facts of the present case.

16.  Further, a substantial part of the Applicant’s written submissions made up of general assertions against the Director.  We agree with the Judge’s decision that the Director’s decision had been superseded by the Board’s decision and hence not amenable to judicial review.  The Judge was correct to dismiss the application for leave to apply for judicial review against the Director’s decision.

17.  Before us, neither the Notice of Appeal nor the Applicant’s submissions engage the Judge’s reasons for dismissing the application for leave for judicial review.  On the whole, the Applicant failed to pinpoint any errors in the Judge’s decision.

18.  In our judgment, the Judge’s decision was correct.  The Board has found that there was no risk of harm of the type contemplated by the four grounds for non-refoulement and that internal relocation was viable.  As mentioned above, these are matters within the province of the Board.  The Applicant has not identified any reasonably arguable basis to challenge the Board’s finding. 

19.  As the Judge rightly pointed out in [18] of the Form CALL-1, the Applicant has not produced any particulars or evidence in support of his complaint against the Board’s assessment.  The Board found that the Applicant had failed to establish that the ill-treatment of him attain the minimum level of severity.  Even on the Applicant’s own case, this finding seems to us to be correct. 

20.  The Judge was also correct in rejecting the ground based on lack of language and legal assistance.  It is well established that the high standards of fairness do not demand interpretation service or legal representation being made available all the time to a non-refoulement claimant: Re Akram Raja Noman [2019] HKCA 1361, at [10] & [14].

21.  In the circumstances, we agree with the Judge that the intended judicial review had no reasonable chance of success.  The Applicant therefore failed to meet the threshold for leave to be granted as laid down by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

22.  For these reasons, we dismiss the appeal.