RE MANDAIR AMANDEEP SINGH

CACV 328/2018

[2018] HKCA 706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 328 OF 2018

(ON APPEAL FROM HCAL 1130/2017)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 9 July 2018 refusing leave to apply for judicial review. The applicant’s intended application for judicial review is against the decisions of the Director of Immigration dated 31 July 2017 and the Torture Claims Appeal Board dated 11 December 2017 respectively.

2.  On 10 August 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions.  He also directed that if such submissions were not lodged within the prescribed time (ie not less than 28 days before the hearing of the appeal), the applicant would be deemed to have waived his right to have an oral hearing and have elected to have this appeal disposed of on paper.  The requirement of lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of the applicant is important for the proper and effective functioning of our appeal process and this court has taken a firm stance against non-compliance with such requirement: see Re Manjit Kaur [2018] HKCA 247, para 10; Re Miha Md Limon [2018] HKCA 278, para 12; Re Ali Arshad [2018] HKCA 304, para 10; and Re Sk Sarfaraj [2018] HKCA 307, para 10.

3.  On 20 August 2018, the hearing of this appeal was fixed for 11 October 2018.  When the hearing date was fixed, the applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

4.  Despite the directions and reminder, the applicant did not lodge any skeleton submissions. Accordingly, the hearing date was vacated, and we now deal with this appeal on the basis of the material before us.

Background

5.  The applicant is an Indian National.  He entered Hong Kong illegally on 27 November 2015 and surrendered to the Immigration Department on the same day.  He was released on recognizance on 29 December 2015.  A removal order was issued against the applicant on 7 September 2016. 

6.  On 8 September 2016, the applicant lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by his stepfather Gurdayal in India because the applicant refused to surrender his entitlement to land inherited from Gurdayal’s late father in favour of Gurdayal.  The details of the applicant’s claim have been summarised by the Judge at [3] – [13] of the CALL-1 Form.

7.  By the Notice of Decision dated 31 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director found that the low intensity and frequency of past ill-treatment from Gurdayal indicated that the risk of being harmed or killed upon the applicant’s return to India was not likely to materialize.  It was also considered that the availability of state protection and the possibility of internal relocation would further lower or negate the perceived risk.  The decision covered the torture risk, BOR2 risk, BOR 3 risk and the persecution risk.

8.  The applicant appealed to the Torture Claims Appeal Board against the Director’s decision.  An oral hearing was held on 27 November 2017.  By its decision dated 11 December 2017, the Board found that the applicant was not a truthful witness and that his story was incredible. The applicant did not face a real risk of harm if refouled to India.  The Board agreed with the Director’s findings that internal relocation was possible and that state protection was available for the applicant.  The Board did not accept the applicant had any risk that warranted non-refoulement protection and refused the applicant’s claim with respect to all the four applicable grounds.

The Judge’s decision

9.  The intended judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed by the applicant on 21 December 2017 contained the following grounds:

(i)   the Director failed to appreciate the importance of or give weight to the presence of state acquiescence;

(ii)   the applicant was tortured by the police and the state law enforcement agencies which was the direct result of misconduct of police officials;

(iii)   the Director failed to give sufficient weight to the relevant COI and to rule in favour of the applicant on the issue of state acquiescence;

(iv)   the Director adopted an unfair attitude and came to pre-conceived conclusions on the applicant’s case;

(v)   the Director failed to attain the high standard of fairness and the decision was unreasonable; and

(vi)   the Adjudicator failed to make sufficient enquiry of the applicant’s case and failed to give sufficient chance to the applicant to arrange relevant evidence for his claim.

10.  The Judge heard the application for leave to apply for judicial review on 5 June 2018.  After summarizing the background of the case and giving consideration to the decisions of the Director and the Board, the Judge gave his reasons in refusing leave in paragraphs [35] to [41] of the CALL-1 form:

“Discussion

35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[1]

37. The Applicant came to Hong Kong in late November 2015. He surrendered to the Immigration Department and was released on recognizance on 29 December 2015. He had been free for almost a year before he was arrested in December 2016 for illegal employment and sentenced to 15 months’ imprisonment. He was released in January 2018.

38. The Applicant's being detained between December 2016 and January 2018 was his own making. If he had really wanted to obtain proofs from India, he could have done so in that year before he was caught and imprisoned. Even in custody, he could have written to his trusted ones in India for help. It is absurd to hear the Applicant say he feared the enemies in India would find out his location if he did write, when he was well safe in a Hong Kong prison.

39. There is no evidence that the Applicant had really requested the Director and the Applicant for more time to get proofs for his claim. Indeed, he had more than sufficient time to get whatever proofs for his claim before he was being detained in December 2016. I do not accept the Applicant's complaint that he had no chance to prove his claim to the Director and the Adjudicator as fully as he had wanted to.

40. There are other complaints by the Applicant. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had duly considered the Applicant’s claim. There was no evidence that the Director and the Adjudicator were prejudiced or cherry-picked information. Their findings, conclusions and decisions were not Wednesbury unreasonable. The Director and the Adjudicator made no errors of law and there was no procedural unfairness. They had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in any of the complaints against the Director or the Adjudicator.

Conclusion

41.   The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

The Appeal

11.  The applicant filed the Notice of Appeal on 20 July 2018 in which he raised two grounds of appeal, namely:

(1)   the Learned Judge was wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director and TCAB;

(2)   the Learned Judge was wrong for not having applied the principle of procedural unfairness.

12.  By a letter received by the court on 20 July 2018, the applicant consented to this appeal being heard by a two-judge court.

Discussion

13.  The applicant’s grounds of appeal contain no substance and are wholly lacking in particulars. They do not constitute viable grounds of appeal.

14.  In any event, as regards the substantive decision of the Judge, we agree with his observations set out in the CALL-1 form, and endorse the Judge’s conclusion that none of the grounds for seeking relief in the intended application for judicial review was substantiated. 

15.  This court has repeatedly emphasised that judicial review is not an avenue for revisiting the assessment of the Board and the Director in the hope that the court may consider the matter afresh even in the absence of any legal error: see Re Lakhwinder Singh [2018] HKCA 246; Re Md Himel also known as Muna Sarkar also known as Sahen [2018] HKCA 279; Re Munir Qaiser [2018] HKCA 341; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.  In our view, there is nothing that warrants the court’s intervention in respect of the findings of the Director and/or Board on public law grounds.  We agree with the Judge that leave to apply for judicial review should be refused.

16.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.