DALJIT BOPARAI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 501 /2019

[2020] HKCA 362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 501 OF 2019

(ON APPEAL FROM HCAL NO 615 OF 2017)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Yau J on 28 June 2019^[1]. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. This appeal is dealt with on paper without an oral hearing due to the non-compliance of an unless order as mentioned below.

2.  The applicant is a national of India of 43 years old. He came to Hong Kong on 22 October 2007 as a visitor.  He overstayed and was arrested by the police on 15 November 2007.  He raised a torture claim on 30 November 2007 on the basis that if he were to be returned to India he would be harmed or killed by his paternal uncle who wanted to take the land which he inherited from his father.

The Director’s decisions

3.  By a Notice of Decision dated 23 January 2014, the Director of Immigration (“the Director”) rejected the applicant’s torture claim.  The Director considered that the alleged threats do not amount to torture as defined in section 37U(1) in the Immigration Ordinance (Cap 115).  The Director further considered that reasonable state protection and internal relocation alternatives are available to the applicant in India.   

4.  The applicant then lodged a non-refoulement claim on 28 March 2014 but withdrew it in April 2016.

5.  On 1 August 2016, the applicant applied to re-open his non‑refoulement claim by way of written representation.  The Director rejected his application on 29 September 2016.  The applicant again applied to re-open his non-refoulement claim by letter on 27 September 2016.  This was rejected by the Director on 6 October 2016.

The Board’s decision

6.  The applicant applied for late filing of the notice of appeal to appeal against the director’s decision of 6 October 2016.  The Board considered that the applicant had failed to show any special circumstances to justify his late filing of the notice of appeal.  Therefore, the application was rejected by the Board on 25 August 2017. 

The intended judicial review

7.  The applicant filed a Form 86 and a supporting affirmation on 12 September 2017 to seek leave to apply for judicial review against the decision of the Board on the ground that he was not satisfied with the Board’s decision and danger still exists in his home country. 

The judge’s decision

8.  The judge considered that there is no flaw in the approach and conclusion of the Board and there are no reasonably arguable grounds to support the intended judicial review.  Therefore, the judge refused the leave application on 28 June 2019.

9.  On 15 July 2019, the applicant filed a summons for leave to appeal against the judge’s decision out of time.  He explained that he only received the judgment on 12 July 2019.  The judge considered that the delay was through no fault of the applicant and granted leave for him to appeal against the decision out of time on 25 October 2019^[2].

The grounds of appeal

10.  The applicant filed a Notice of Appeal against the decision of the judge on 28 October 2019. 

11.  He stated in the Notice of Appeal that he was not satisfied with the decision because it would lead his life towards more danger and he has problem in his own country^[3].

Non-compliance of unless order

12.  The hearing of the appeal scheduled on 10 March 2020 was adjourned to 26 May 2020 due to the general adjournment of court proceedings for public health reasons. 

13.  Directions were given by the Registrar of Civil Appeals on 18 November 2019 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument pursuant to the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper. When the appeal was adjourned to 26 May 2020, the deadline for the applicant to comply with the Registrar’s directions to lodge a skeleton argument was extended to 8 May 2020 by Kwan VP on 17 April 2020.

14.  The applicant failed to lodge a skeleton argument on or before 8 May 2020.  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 15 May 2020, the court informed the applicant that the hearing date of 26 May 2020 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

15.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  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 country of origin information 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.

17.  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 the appeal court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

18.  The applicant’s grounds of appeal are just bare assertions without evidence in support.  They do not constitute valid grounds to reverse the judge’s decision.  He has failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  Therefore, there is no basis for the Court of Appeal to interfere with the judge’s decision. 

19.  As there is no merit in the appeal and no prospect of success in the intended application for judicial review, we dismiss the appeal accordingly.