RE SHARD MANOJ KUMAR

CACV 65/2023, [2023] HKCA 1003

On appeal from [2023] HKCFI 254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 65 OF 2023

(ON APPEAL FROM HCAL NO. 44 OF 2019)

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J U D G M E N T

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Hon Anthony Chan J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 13 February 2023[1] refusing to give him leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”)  dated 9 November 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 7 September 2017 rejecting his non-refoulement claim.

2.  This appeal was scheduled to be heard on 8 August 2023.  Despite the directions given by the Court on 21 June 2023, the applicant failed to lodge his skeleton argument by the stipulated time.  Accordingly, the Court informed the applicant by letter dated 18 July 2023 that the hearing would be vacated and the appeal will be determined on paper, which we now do.

Background

3.  The applicant is a national of India.  He entered Hong Kong on 27 December 2015 as a visitor and was permitted to remain until 10 January 2016.  He did not leave Hong Kong and overstayed.  His application for extension of stay on 12 January 2016 was refused and he continued to overstay in Hong Kong.  He surrendered to the Immigration Department on 18 January 2016.  He later raised a non-refoulement claim based on the fear that, if refouled to India, he would be harmed or killed by the former Director General of Police (“DGP”), Mr. Sumedh Singh Saini (“Sumedh”)  due to the applicant’s possession of materials implicating Sumedh in extra-judicial killings.  The details of his claim are set out at [9] of the Director’s Decision and summarised by the Judge at [4] to [8] of the Form CALL-1.

4.  In gist, the applicant claimed that he was a former police officer of the Punjab Police Force in Ludhiana City from 1993 to 2001.  He claimed to be responsible for carrying out undercover duties on terrorism, gambling, drug and corruption-related cases. In 1997, he became disillusioned with the police force when his supervisor, Sumedh, showed him photographs of two innocent men being killed in a “fake encounter” with the police.  Sumedh and other officers also appeared in the photographs.  The applicant kept the photographs, together with an envelope containing a list of the names and addresses of people who were killed in fake encounters.  The applicant had attempted to expose these wrongdoings to the public but he was intercepted by Sumedh, who threatened to kill him if he ever attempted to do it again.

5.  In March 1999, the applicant decided to escape to Kenya but he returned to India three months later as he felt that Kenya was not a viable option for relocation.  In 2001, the applicant resigned from the police force.  In the years that followed, the applicant continued to be monitored and harassed by Sumedh and his men, who kept asking the applicant to return the incriminating evidence.  The applicant decided to flee to Hong Kong after he was nearly shot by Sumedh’s men in an alleged kidnapping incident on 20 December 2015.  On 27 December 2015, the applicant entered Hong Kong with a visitor visa.  He last contacted his family members in June 2017.  

The Director’s decision

6.  By a Notice of Decision dated 7 September 2017, the Director rejected the applicant’s claim on all applicable grounds, namely, BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5] grounds.   

The Board’s decision

7.  The applicant appealed to the Board.  On 17 July 2018, the Board conducted an oral hearing during which the applicant was assisted by an interpreter in the Indian Punjabi language[6]. By its decision dated 9 November 2018, the Board dismissed the appeal.

8.  In gist, the Board found significant anomalies in various aspects of the applicant’s evidence which cast doubt on the core basis of his claim[7]. Notably, the applicant had little knowledge of Sumedh’s role and rank in the police force.  His explanations could not stand up to scrutiny when the country of origin information was put to him indicating that Sumedh was no longer the DGP of the police force in October 2015, and that Sumedh had subsequently retired from the police force in July 2018[8].

9.  In respect of the alleged incriminating materials, the applicant gave problematic and unconvincing evidence as to how the incriminating materials could implicate Sumedh and other officers in extra-judicial killing; how the photographs constitute evidence of “fake encounters”, and the circumstances in which the applicant came to be in possession of these highly-sensitive information.  Despite the relentless effort of the senior officers in pursuing the applicant to obtain the incriminating materials, there was no indication that Sumedh or anyone else had ever attempted to search the applicant’s home or any of his possessions for them[9].  Further, the Board was not convinced that the applicant had been an undercover police officer, given the crudeness in the way he carried out his investigation in a drug trafficking case and his ignorance of the name of the drug that he seized[10].  

10.  In light of these findings, whilst the Board accepted that the applicant was a police officer in the Ludhiana police force between 1993 and 2001, the Board did not accept that he had been an adverse interest to Sumedh or his networks, or that he was being suspected of possessing the incriminating photographs or documents as claimed.  On the totality of the evidence, the Board considered that the applicant had fabricated his claims of threats, kidnap and surveillance allegedly involving Sumedh[11].

11.  In the circumstances, the Board did not accept the applicant would face any risk of harm as claimed if he were to return to India.  The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds and dismissed his appeal.

The Judge’s decision

12.  The applicant filed a Form 86 on 7 January 2019 to apply for leave to judicially review the Board’s decision.  He did not put forward any ground for seeking relief in his Form 86 or his supporting affirmation.  

13.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 13 February 2023, the Judge refused to give leave for judicial review and gave his reasons in [17] to [22] as follows:

“17. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

19. 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.”

20. The Board had rejected the applicant’s evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

21. 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.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

The grounds of appeal

14.  By a notice of appeal issued on 27 February 2023, the applicant asked the Court to “take a serious look on his case for justice”.  In a letter of the same date which was annexed to his notice of appeal[12], the applicant stated for the first time that he was confused with the questions posed by the Board at the hearing because he was assisted by a Pakistani Punjabi interpreter instead of an Indian Punjabi interpreter.  He also stated that Sumedh was responsible for the death of many innocent people and that the exposure of his wrongdoings would disturb the entire state of Punjab.  He attached an undated article which purportedly revealed Sumedh’s wrongdoings and a report published by the Special Rapporteur of the United Nations General Assembly on 26 April 2013 in relation to extrajudicial executions in India.

15.  However, the applicant failed to lodge any skeleton argument in support of his appeal.  No application was made by the applicant to extend the time for the lodging of skeleton argument.  As stated in the letter from the Court dated 18 July 2023, the applicant is deemed to have waived his right to have an oral hearing.  Accordingly, the Court will determine the appeal on paper based on the materials before it.

Our reasons for decision

16.  The general principles regarding an appeal in a non-refoulement case had been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board, who are responsible for assessing the credibility of witnesses, the evidence and country of origin conditions, and make findings of fact pertaining to whether there are risks of harm, availability of state protection and viability of internal relocation.

(2)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

(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.

17.  In light of the established legal principles set out above, we are of the view that the applicant’s appeal has no merits.  Our reasons are as follows:

(1)  The assertion that the applicant was not provided with an Indian Punjabi interpreter at the hearing of the Board is a new ground which was not raised before the Judge.  The applicant had not put forward this ground (or any ground)  in his Form 86 or in his supporting affirmation.  As such, this ground was not argued before the Judge and there is no basis for this court to consider it.  It is well-established principle that this court would not permit new ground which is fact-sensitive to be raised for the first time on appeal: Flywin Co Ltd v Strong & Associates Ltd (2002)  5 HKCFAR 356 at [38].  It is therefore not open to the applicant to raise this argument at this stage.   

(2)  In any event, the applicant has not indicated with particulars what were the questions or matters raised by the Board which had caused him confusion due to the absence of an Indian Punjabi interpreter.  The applicant has not pointed to any specific errors in the translation which had led to any erroneous findings of the Board, or how they would impact on the assessment of the Board.  

(3)  Contrary to the applicant’s contention, it appears from the Board’s decision at [8] that the applicant was in fact assisted by an interpreter in the Indian Punjabi language at the hearing.  There is nothing in the Board’s decision indicating that the applicant had any issue with the interpretation.  The Board was satisfied that the applicant was given every reasonable opportunity to establish his claims for non-refoulement protection in Hong Kong ([26] of the Board’s decision).

(4)  For the reasons given above, the applicant has not shown any prejudice or unfairness based on the interpretation assistance provided to him at any stage of his non-refoulement claim to warrant the intervention of the Court by way of judicial review.   

(5)  The applicant’s assertion that the revelation of Sumedh’s wrongdoings would disturb the entire state of Punjab and the documents submitted by him[13] do not assist in light of the Board’s rejection of his claim.  The Board had given full reasons for its doubts over the veracity of the factual basis of his claim and its finding that there was no risk of harm to him as claimed.  The applicant has not put forward any arguable grounds to show that the Board’s assessment of credibility and finding of facts can be disturbed on public law grounds.

(6)  The applicant did not in his Notice of Appeal identify any error in the Judge’s decision or advance any ground for reversing the Judge’s decision.

18.  We agree with the Judge that there is no proper basis for interfering with the Board’s evaluation of the evidence and its assessment of credibility and finding of facts.  The intended judicial review has no reasonable prospect of success and leave to apply for judicial review was rightly refused.  As the applicant’s appeal has no merits, we dismiss the appeal.