RE SETH NIZAM

CACV 257/2021

[2021] HKCA 1448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2021

(ON APPEAL FROM HCAL NO 1017 OF 2018)

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J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

Introduction

1.  On 11 May 2021, Deputy High Court Judge 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 21 May 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 1 December 2017 rejecting the applicant’s non-refoulement claim.

2.  On 18 May 2021, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.  The applicant is an Indian national.  He last arrived in Hong Kong on 11 April 2008 and was permitted to remain as a visitor until 9 May 2008.  He did not depart and has overstayed. On 27 May 2009 he was arrested by police for overstaying and was referred to the Immigration Department.  The applicant raised a torture claim on 29 May 2009, which was subsequently rejected by the Director on 23 October 2013. The applicant lodged his current non-refoulement claim on 6 November 2013.

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by a loan shark or his gangsters for defaulting on his loan.  The factual background was summarized at paragraphs 9 to 21 of the Board’s decision.

5.  By notice of decision dated 1 December 2017, the Director assessed the applicant’s claim on all applicable grounds except torture risk[1] and determined it against him.  Those other applicable grounds are BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 8 March 2018, during which the applicant gave evidence and answered questions from the Board.  The Board found that his claims were not credible, due to his oral evidence at the Board hearing differing considerably from his claims and evidence provided to the Director.  At paragraph 41 of its decision, the Board noted that it had discussed those inconsistencies with the applicant at the Board hearing, however the applicant was unable satisfactorily to explain the inconsistencies.

7.  As a result, the Board did not accept that the applicant’s claims in relation to the loan shark were truthful.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board dismissed the applicant’s appeal on 21 May 2018 on all the applicable grounds, including torture risk.

Decision of the court below

8.  On 4 June 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The applicant’s grounds for judicial review were summarized by the Judge at [9] of the Form CALL-1 ([2021] HKCFI 1338, HCAL 1017/2018).

9.  Following a hearing on 5 January 2021 at which the applicant appeared in person before the Judge, on 11 May 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [9] – [15] of the Form CALL-1 ([2021] HKCFI 1338, HCAL 1017/2018)  as follows:

“9. On 4 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Adjudicator failed to meet the high standard of fairness required of the tribunal in failing to conduct a fair oral hearing with legal representation for the Applicant in his appeal hearing before the Board;

(2)  That the Adjudicator took account of irrelevant considerations in assessing the Applicant’s claim in rendering a refusal decision;

(3)  That the Adjudicator gave no proper reasons for the decision after providing a very comprehensive and considered analysis of the information and issues and correctly setting out the relevant rules and principles applied in determining the Applicant’s claim but did not set out her analysis of the two matters advanced by the Applicant in support of his claim before concluding that the Applicant’s experience did not amount to torture and that there were no substantial grounds that he would be subjected to torture if returned to his home country;

(4)  That the Adjudicator had not taken all the COI materials from the hearing bundle in rejecting the Applicant’s claim that there was no genuine threat in his claim; and

(5)  That the Adjudicator and the interpreter had done a shoddy job, intentionally rude, inconsiderate and failed miserably, and that the interpreter also interpreted wrongly twice during the oral hearing which led the Adjudicator to conclude that the Applicant’s claim was inconsistent and vague.

10. For his complaint in Ground (1)  of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

11. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12. As for his complaints in the remaining 4 grounds, they all appear to me just broad and vague assertions of the Applicant without proper details or particulars in support, or as to what irrelevant considerations were taken by the Director or the Board or what COI which they had failed to consider in the assessment of his claim, or what mistakes were made by the interpreter in interpreting his evidence during his appeal hearing before the Board, and that none of which the Applicant has provided any evidence in support, while his complaints under Ground (3)  are confusing and contradictory and appear to have been copied from some pro forma statement commonly used in this type of applications but not relevant to the facts of his own case at all. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any of his grounds reasonably arguable for his intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

14. The fact is that it has been established by the Director in his decisions 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 parts of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  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

10.  On 18 May 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he will face hardship if he were to return to his home country, that the Board relied on news sources that are not officially recognized, or are simply hearsay, and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

11.  The applicant lodged his written submissions for appeal on 7 September 2021.  Those submissions consist of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.

12.  The applicant did not provide any details or particulars in support of his grounds of appeal or as to any specific errors by the Judge.  At the appeal hearing, the applicant said he had nothing further to say.

Legal principles

13.  In assessing the merit of the appeal, we have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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 purpose 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 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 (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.

(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.  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1)  of the Rules of the High Court (Cap 4A).

Discussion

14.  As mentioned earlier, the applicant did not in his Notice of Appeal or written submissions provide any particulars in support of his grounds of appeal, identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  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.

15.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding as to the applicant’s credibility.  As such, the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

18.  For these reasons, this appeal is dismissed.