MUNISH KUMAR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 123/2021

[2021] HKCA 1231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 123 OF 2021

(ON APPEAL FROM HCAL NO 862 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 19 March 2021, DHCJ Bruno Chan (“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 19 April 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”)  dated 18 July 2014 and 6 July 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 24 March 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

3.  The Applicant is a national of India who arrived in Hong Kong on 18 March 2014.  When he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by local supporters of a political party Bharatiya Janata Party (“BJP”)  as he was a supporter (not even a member)  of the Indian National Congress Party (“CP”).The factual background was succinctly summarized by the Judge in [1] – [3] of the Form CALL-1 ([2021] HKCFI 736).

4.  By a Notice of Decision dated 18 July 2014 and Notice of Further Decision dated 6 July 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against him.

5.  The applicant appealed the Director’s decisions to the Board.  He attended 3 oral hearings on 12 January 2015, 29 January and 20 February 2018 before the Board, during which he gave evidence and answered questions put to him by the Board.  By its decision made on 19 April 2018, the Board dismissed the appeal. After careful consideration of the applicant’s evidence alleging that he had suffered 4 attacks from BJP people from mid-2013 to February 2014, the Board found that he did not suffer any serious injury.[5] Further, as the applicant no longer assisted the CP and as he had already left India for 4 years at time of the hearing before the Board, the Board took the view that if the applicant relocated to another area and did not participate in political activities, he would be safe from any attacks from the BJP party.[6]  In any event, the Board found he had many options for relocation in India and it would be very difficult for the BJP people to locate him among such a large population and in such a large country.  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

6.  On 17 May 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  In his supporting affirmation, he advanced the following grounds for his intended challenge (as duly summarized by the Judge at [9] of Form CALL-1):

(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 non-refoulement claim. 

(2)  The Director failed to take into account that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies and that the state would be held liable to the applicant because of the state and the public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

(3)  The Director had listed relevant COI which supported the applicant’s aversions that the police in India would not be able to protect but the Director failed to consider or give sufficient weight to the COI and ruled otherwise.

(4)  The Director referred to those COI which suited his pre-conceived conclusion which is a clear case of unfair attitude and his decision should be void.

(5)  The Director failed to recognize that corruption and incompetency of the administration in India is still a very serious problem as supported by various human rights organization reports.

(6)  The Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered as unreasonable in the scope of public law.

(7)  The Adjudicator failed to make sufficient enquiry before finalizing its determination.

(8)  The Adjudicator failed to give sufficient chance to the applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

7.  The Judge heard the application on 28 October 2020 and by his decision dated 19 March 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [13] of the Form CALL-1 as follows:

“10. These are however all 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 decisions, or what relevancy is the concept of state acquiescence to his claim, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director or the Adjudicator fail to make sufficient enquiry or to apply high standard of fairness in their determination of his claim, or how did the Adjudicator fail to provide sufficient opportunity for him to submit his relevant evidence in support of his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such and in the absence of any error of law or procedural unfairness in his process before them or in their decisions being clearly and properly identified by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

11. 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.

12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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.”

Appeal to this Court

8.  On 24 March 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following grounds of appeal:

(1)  The Director had failed to appreciate or give proper weight to state acquiescence in his case, and it led to an unfair outcome of rejection of his non-refoulement claim.

(2)  The Director, the Board and the Court had failed to take such argument into account and the Director has failed to give sufficient weight to such argument before reaching the decision.

(3)  The Board had failed to make sufficient enquiry before finalizing the determination.  Since the Board had accepted that he had troubles with the BJP supporters, it was unfair to assume that his life would not be endangered by his enemies as BJP is the most powerful party in India, and as it is situated in about 18 states of India, it would not be difficult for the BJP people to track him down.

(4)  The Director had listed relevant Country of origin information (“COI”)  which supported his averments that the police in India would not be able to protect him, but the Director failed to consider or give sufficient weight to them and ruled otherwise.

(5)  The Director, while referring to relevant COI, made a pre-conceived conclusion and it was a clear case of unfair attitude which should render its decision void.

9.  In compliance with the Court’s directions of 22 June 2021, the applicant lodged his written submissions on 19 July 2021.  In those submissions, he referred to Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the propositions that (1)  high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2)  the courts should review the Board’s decision with rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3)  the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.  The applicant also mentioned section 37ZT of the Immigration Ordinance (Cap 115)  without any explanation or elaboration.

10.  At the hearing, the applicant had nothing to add.  

Legal principles

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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 on appeal, which operates as a re-hearing, 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 primarily within the province of 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.

(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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.  Since this is an appeal, this Court would focus on the decision of the Judge.  Save in relation to Ground 2, the applicant failed in his Notice of Appeal and written submissions to provide any ground of appeal against the Judge’s decision or to identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.  All his complaints under Grounds 1, 3, 4 and 5 are directed against the Director and the Board only.  In so far as Ground 2 is concerned, the complaint against the Judge’s decision is just a general assertion without any substance.

13.  As mentioned earlier, the role of the Court of Appeal is not to provide a further avenue of appeal against the Director’s and/or the Board’s decisions. 

14.  Having considered the material before us, we are of the view that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and he was entitled to refuse leave to apply for judicial review.

Order

15.  For the above reasons, this appeal is dismissed.