AMANDEEP KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 393/2019

[2019] HKCA 1369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 393 OF 2019

(ON APPEAL FROM HCAL NO. 1621 of 2018)

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JUDGMENT

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 16 August 2019 refusing to grant him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 21 November 2017 and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 3 August 2018.    

2.  The applicant is an Indian national.  He entered Hong Kong illegally on 27 December 2015 and was arrested by the police.  He was transferred to the Immigration Department for investigation on 28 December 2015.  On 11 January 2016, he lodged his non-refoulement claim by way of written representation. 

3.  The applicant’s claim is based on his fear that he will be harmed or even killed by the family members or relatives of his girlfriend Simran Sharma (“Simran”) if refouled.  The applicant’s claim was set out in details in [6] of decision of the Director, and summarised by the Judge in [2] to [4] of the Form CALL-l dated 16 August 2019, [2019] HKCFI 2042.  In gist, the applicant met and fell in love with Simran in or about August 2013.  Simran was from a rich Brahmin Hindu family which had a close affiliation with the Congress Party, the police and government officials.  On the other hand, the applicant came from an ordinary Sikh family, thus there was a difference between the applicant’s family and Sharma’s family in social status that caused Simran’s family disapproved their loving relationship.  In or about September 2015, Simran’s family arranged a marriage for her.  She refused and tried to elope with the applicant but in vain.  The applicant hid up for two months to avoid Simran’s family.  When he returned home at the end of November 2015, he was intercepted and beaten up by five to six relatives of Simran.  As a result, the applicant suffered injuries at his right forearm and right elbow and he was treated with medicine from local pharmacy.  His family had reported the matter to the police but the police did not take any action.  On 26 November 2015, the applicant left India to China in fear and came to Hong Kong on 27 December 2015. 

4.  By the decision dated 21 November 2017, the Director rejected the applicant’s claim having regard to the torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4] grounds.  

5.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 20 March 2018, during which he was assisted by an Indian interpreter in the Punjabi and English languages.  By a decision dated 3 August 2018, the Board dismissed the appeal.  After the due consideration and assessment of the applicant’s evidence (see [35] – [56] of the decision), the Board rejected the applicant’s case in its entirety as his evidence was contradictory, inconsistent and incredible (see [57] – [61] of the decision).  The Board did not accept that the applicant would face a real risk of harm from Simran’s family or the police if he were to return to India.  For the aforesaid reasons, the Board dismissed the applicant’s claim on all applicable grounds.

6.  The applicant filed his Form 86 together with a supporting affirmation on 13 August 2018 seeking leave to apply for judicial review against the decisions of the Director and the Board. In his supporting affirmation, he set out the background of his case and put forward the following grounds of relief:

(1)  The decision of the Board was not read or translated to him which made it hard for him to understand the reason why his case was rejected.

(2)  There was procedural unfairness for the lack of language assistance and it fell below the high standards of fairness required for non-refoulement cases.

(3)  There was insufficient assistance provided to him given the hardship suffered by him in his home country.

7.  The Judge considered the intended judicial review not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review. He gave his reasons at [12] to [21] of the Form CALL-1 as follows:

“DISCUSSION

The Director’s Decision

12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the applicant without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

13. Also, 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.’

14. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

15. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

16. The applicant appeared before me. He confirmed that he had no complaint against either the Immigration officer or the Adjudicator. He said he could read English himself. He understood the Decisions of the Director and the Board. He considered that he had had a fair hearing before the Board.

17. I put the Board’s finding of the facts to him and ask him to comment. He had no comments to make.

18. It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

19. Grounds (1) is not true and (2) is irrelevant. They fail.

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

CONCLUSION

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

8.  The applicant filed a notice of appeal on 26 August 2019, which contained the following grounds of appeal:

“I am not satisfied with the decision because it will lead my life towards more danger. Please allow me for further process of my application so that I can save my life.”

9.  In his written submissions, the applicant stated the following:

(1)  He reiterated that he would not be safe if he were to return to his country.

(2)  He was not satisfied with all the decisions made regarding his case as the decision-makers ignored the real facts which related to his case.

(3)  The situation of his country was that the authorities always back up those people who have power and political background.

(4)  Death and torture are common for people kept in police custody and the wrongdoers always enjoy freedom due to their power.

(5)  Even if the culprits are arrested, they can bribe the police and one cannot expect justice in the corrupt system.

(6)  With the aforesaid condition, the applicant could not survive and he might be tortured or killed upon refoulement.

(7)  No one would dare to stand or say anything against the authorities and the applicant is alone and nothing in front of them.

(8)  The applicant’s enemies are still looking for him and he is still under the threat of killing. 

(9)  The applicant’s enemies are powerful with strong political support and he did not have enough sources to protect himself.

(10)  The applicant requested to stay in Hong Kong until his problem is solved.  

10.  We heard the appeal on 3 December 2019.  At the hearing, the applicant said, in May or June this year, while attending his sister’s wedding in India, someone attacked his brother with gunshots and his brother was seriously injured.  The applicant said the people who shot his brother were from the Simran’s family who had misidentified his brother as him.  The applicant also said the video clip of the incident can be found in YouTube.  The applicant, however, did not inform the Immigration Department of the happening of this incident.  When he was asked by this Court if he was still in contact with Simran, the applicant said he was not and added that Simran got married to another person and he did not know much about her.

Discussion

11.  None of the grounds set out in the notice of appeal and in the written submission are directed to the Judge’s decision and they are not viable grounds of appeal.  As this Court repeatedly emphasised, an appeal against the refusal of leave by a judge in the Court of First Instances is not an occasion for regurgitating arguments advanced and rejected by the judge and in determining the appeal, this Court would focus on the decision of the Judge and we would only reverse the Judge’s decision if the applicant 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, see Nupur MST v Director of Immigration [2018] HKCA 524 at paragraph 14.  The applicant provided none of the aforesaid basis for our intervention of the Judge’s decision.  

12.  Further, the applicant’s case was rejected by the Board on the issue of credibility and his evidence was rejected in its entirety due to the vague, general, confused and inconsistent evidence provided by the applicant and the Board found that the applicant should not face any real risk of harm if he were to return to his home country.  We are satisfied the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny and we agree with the Judge that there was no error of law or procedural impropriety nor any failure on its part to apply the high standard of fairness in its consideration and assessment of the applicant’s claim.  The applicant has failed to show that he has a reasonable chance of success in his intended judicial review.

13.  Regarding what was said by the applicant at the hearing, we are of the view that it does not advance the applicant’s appeal.  If there are changes in the circumstances or new information that are material to his case for non-refoulement, the applicant may consider providing the information or new evidence to the Director, who is the primary decision maker, pursuant to section 37ZO(2) of the Immigration Ordinance, Cap. 115.  As we have pointed out, this Court’s focus in this appeal is the correctness of the Judge’s decision in the light of the materials that were before him.  What the applicant said in oral submission does not go to show that the Judge had erred in his decision.  

14.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.