PANKAJ KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMNT CLAIMS PETITION OFFICE

CACV 75/2021

[2022] HKCA 283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 75 OF 2021

(ON APPEAL FROM HCAL NO 2398 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 February 2021, DHCJ P Li (“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 26 October 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 21 March 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 24 February 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.  On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

3.  The Applicant is a national of India. He came to Hong Kong on 30 December 2013 as a visitor.  He overstayed since 4 January 2014 and surrendered to the Immigration Department thereafter.  On 18 March 2014, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or even killed by Pritpal Singh (“PS”)  and his associates who belonged to the political party named Shiromani Akali Dal (“SAD”)  as he was a supporter of a rival political party, the Congress Party (“CP”).  PS also blamed him for the death of his brother during a fight.  The factual background of this case was succinctly summarized by the Judge in [2] – [12] of the Form CALL-1 ([2021] HKCFI 383).

4.  By a Notice of Decision dated 21 March 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

5.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 19 June and 3 July 2018 and by its decision dated 26 October 2018, the Board dismissed the appeal.  For the reasons set out in [29] – [61] of the Board’s decision, the applicant’s case was rejected on the issue of credibility as his account about the assault suffered at the Government College, the fight with PS’s brother and the subsequent car accident met by PS’s brother was vague, inconsistent and implausible.  Even taking his account at its highest, he did not suffer any serious injury over the alleged incidents of conflict and his fear that PS would take revenge on him for his brother’s death remained mere theory and suspicion [62] – [67].  In any event, there is reasonable state protection and internal relocation is a viable option.  For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds.

Decision of the court below

6.  On 30 October 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, he alleged that he was not given a fair hearing before the TCAB.  He could not understand the bundle which was largely in English. The TCAB relied on outdated Country of origin information (“COI”)  and most of them were hearsay in nature.

7.  On 24 April 2019 however, the applicant applied to withdraw his leave application.  He indicated in his affirmation that his problems in India had been resolved and he would return home.  His application was allowed by the Court.  On 18 May 2020 however, the applicant applied to re-instate his leave application on the ground that he found out that his problems in India remained and he would be killed by his enemies if he returned to India.  His reinstatement application was allowed.

8.  The applicant attended an oral hearing on 17 November 2020 for his application for leave to apply for judicial review.  By the decision dated 19 February 2021, the Judge refused to grant him leave to apply for judicial review and the reasons for the refusal were set out at [29] – [33] of the Form CALL-1 as follows:

“29. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB and the Director. In general, this court would not interfere.

30. The applicant argued that he was not given any translation of the appeal bundle which was in English. He could not understand its content in short notice. In my view, the most important document in the appeal bundle is the decision of the Director. It must have been translated to him by the DLS. As to the NCF, it was interpreted to him at the time of compilation. He signed to confirm the content was true, complete and accurate. The fact that there is no translation of the appeal bundle would not give rise to any unfairness.

31. On the one hand, the applicant complained that he was confused during the hearing before the TCAB. On the other hand, he maintained that he answered all questions honestly. A fair reading of the decision of the TCAB showed that the adjudicator had explored the issues in great detail. The applicant was given ample chance to explain.

32. The adjudicator had considered the COI listed out in the decision of the Director. They were accessed latest in 2017. They were authentic reports from reliable sources. In fact, the applicant did not point out any specific inaccuracy or substantial change of circumstances. I do not accept this general criticism.

33.  In my judgment, there is no error of law or procedure.  The decisions are reasonable.”

Appeal to this Court

9.  On 24 February 2021, the applicant filed his Notice of Appeal against the Judge’s decision on the following grounds:

“the applicant will face hardship life if he return back to his home country and that the Torture Claims Appeal Board and Immigration officer relied on same source news which was not officially recognised or it is a simply hearsay, they have also relied on some cases and points which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

10.  In compliance with the Court’s directions of 28 April 2021, the applicant lodged his written submissions on 10 May 2021.  In his written submissions, he reiterated that he will face risk of harm and life if he were to return to India as his enemy is still waiting for him.  He further advanced the following grounds:

(1)  The Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director and the Board.

(2)  “High standards of fairness” are required in the determination of a torture claim but the Judge reviewed the matter lightly.

(3)  The decision has the effect of finally disposing of the applicant’s torture claim and making him liable to be removed.  This entails real and significant implications for the applicant’s substantive right not to be subject to torture and his right to non-refoulement protection.

(4)  The Judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director and the Board were required to give reasons justifying their decisions.

(5)  Although the applicant’s problems are severe and he had submitted all the proofs, the Judge did not take greater care and disappointed him.

(6)  The Judge failed to analyze the applicant’s case properly.

(7)  The Judge’s decision was unreasonable.

(8)  The Judge may not “receive the applicant’s claims what had been refused by the Board and the Director”.

(9)  The Board failed to give sufficient chance to him to arrange evidence for his appeal.

(10)  It is the applicant’s fundamental human right not to be subject to torture and thus high standards of fairness are required.

(11)  The applicant will face hardship if he were to return to his home country and the Board had significantly relied on sources which is not officially recognized or on hearsay evidence.

(12)  The Board’s decision is irrational as it failed to evaluate and make a finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in India.

(13)  The Board had failed to analyze and assess whether state protection exists in India (the applicant’s submissions in fact referred to Bangladesh, not India)  and misdirected itself as to the extended meaning of state protection.

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 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 were 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.  The grounds of appeal as set out in the Notice of Appeal and the written submissions are vague and general assertions without particulars or elaboration: 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. 

13.  Here, the Board rejected the applicant’s case on the issue of credibility and held that even on his account of events, he had not sustained any or any serious injury, nor there was any evidence suggesting he would face any real risk of harm upon his return to India.  As mentioned earlier, assessment of evidence, risk and COI was within the province of the Board, and the court would not intervene unless there exist valid public law grounds. 

14.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

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