BHARE AMANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 216/2020

[2020] HKCA 1021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 216 OF 2020

(ON APPEAL FROM HCAL NO 81 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  This is an appeal from the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 16 June 2020 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 (“the Board”) dated 5 January 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 22 December 2016 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is an Indian national.  He arrived in Hong Kong on 1 October 2015 and was permitted to stay as a visitor in Hong Kong until 15 October 2015.  He did not depart, and on 19 October 2015 he surrendered himself to the Immigration Department.  He lodged a non-refoulement claim on 4 February 2016. 

3.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his father’s creditor, Dimple, who attempted to illegally occupy the applicant’s family’s home in 2012.  The factual background has been summarized by the Judge in [2]-[7] of the Form CALL-1 ([2020] HKCFI 731).

4.  By notice of decision dated 22 December 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against the applicant.  The applicable grounds are BOR 3 risk,[1] persecution risk,[2] torture risk,[3] and BOR 2 risk.[4]

5.  The applicant appealed to the Board.  An oral hearing was held on 21 December 2017 during which the applicant was interviewed by the Board.  The Board found that the applicant was credible and honest in his evidence.  However, because the applicant’s father eventually won a lawsuit against Dimple to recover the family home, and because there was no subsequent physical harm done to the applicant and his immediate family after the incident in 2012 and before he left India in 2015, the Board found there was no real risk of harm to the applicant.  In addition, the Board considered that state protection was available and that the applicant’s family had availed themselves of that protection.  Accordingly, the Board dismissed the appeal on 5 January 2018.

Decision of the court below

6.  On 16 January 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  However, the applicant did not provide any grounds for seeking relief in his Form 86 or supporting affirmation, other than asserting that the decision of the Board was unfair and unreasonable.

7.  After consideration of the documents only, on 16 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12]-[16] of the Form CALL-1 ([2020] HKCFI 731, HCAL 81/2018) as follows:

“ 12.  On 16 January 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that he wanted to review the Board’s decision because it was unfair and unreasonable, but without providing any particulars or specifics or elaborations why it was so. In the absence of any error of law or procedural unfairness in his process before the Board or in its decision being identified by the Applicant, I do not find any reasonably basis for him to challenge the finding of the Board.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

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

15.  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.

16.  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.”

Appeal to this Court

8.  On 24 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision, stating the following grounds of appeal:

(1)  he would face hardship if he were to return to his country;

(2)  the Board relied on news and its own assumptions that were not officially recognized, and also relied on hearsay;

(3)  the Board relied on outdated reports from non-official organizations; and

(4)  the lack of credible sources of information resulted in the Board making groundless speculations.

9.  The applicant has agreed in writing that the appeal can be heard by 2 judges.

10.  In his written submissions for this appeal, the applicant raised the following arguments that were not already raised in his Notice of Appeal:

(1)  the Judge erred in law in not applying the principle of irrationality to the Director’s and the Board’s decisions;

(2)  the Judge reviewed the matter lightly, which is not in line with the required high standards of fairness;

(3)  the Judge erred in law in not applying the principle of procedural unfairness, whereby the Director and the Board were required to give reasons justifying their decisions;

(4)  the Judge did not properly analyze the applicant’s problems in his home country, and was unreasonable in refusing the applicant’s appeal;

(5)  the Board failed to give the claimant sufficient opportunity to arrange relevant evidence in support of his claim and appeal.

11.  However, in those submissions the applicant did not provide any details or particulars in support of his arguments or grounds of appeal.

Legal principles

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

Discussion

13.  As mentioned earlier, the applicant did not in his Notice of Appeal or his submissions provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars are not effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.  The grounds of appeal stated in the Notice of Appeal are all general criticisms of the Board’s decision.  They are not valid, specific grounds for impugning the Judge’s decision. 

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its finding that there was no real risk of harm to the applicant if he was to return to India. This finding was based on the facts alleged by the applicant and which were accepted by the Board, who found him to be generally credible in his evidence. Such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on grounds within the scope of judicial review. 

16.  In light of the Board’s finding that there was no real risk of harm, it was not necessary for the Board to consider country of origin information; doing so would not have changed the result.  As such, the applicant’s grounds of appeal and submissions pertaining to the Board’s decision are without merit.

17.  The applicant’s written submissions set out several general criticisms of the Judge’s decision, but they lack particulars and, as far as we can see, there is nothing to substantiate them.  Clearly the Director and the Board provided written reasons for their decisions, and there is no question of the Judge failing to apply any principle relating to procedural fairness.  As stated earlier, analyzing the applicant’s problems in his country is a matter within the province of the Board.  The applicant has not raised any valid public law ground for interfering with the Board’s finding that there is no real risk of harm.  There is no valid basis for criticising the Judge for not analysing the applicant’s problems in his home country.

18.  Having considered the materials before us, we do not see any error in the Judge’s reasoning or conclusion.  The Judge has applied the relevant legal principles correctly.  There is no valid ground to impugn his decision.

19.  For these reasons, the appeal is dismissed.