RE DHILLON SUKHWANT SINGH

CACV 359/2018

[2019] HKCA 46

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 359 OF 2018

(ON APPEAL FROM HCAL 676/2017)

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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):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) on 27 July 2018 in HCAL 676/2017 refusing leave to the applicant to apply for judicial review. 

2.  Because of the applicant’s non-compliance with the direction for lodging his skeleton submission within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 7 December 2018), the applicant was deemed to have waived his right to have an oral hearing having been warned of this consequence by the Registrar of Civil Appeal’s letter to him dated 3 September 2018.  This appeal is processed on paper based on the materials already lodged according to the practice adopted by this court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The applicant is an Indian national.  He arrived in Hong Kong on 12 September 2006 as a visitor and was permitted to stay until 31 October 2006 by several grants of extension of stay.  He did not leave upon expiry of his permission to stay and had overstayed in Hong Kong since 31 October 2006.  He was arrested by the police on 20 May 2009.  On 22 May 2009, he raised a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by his neighbour Mander Singh, who was politically affiliated with Shiromani Akali Dal (“SAD”), over a land dispute.

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1696.  We shall not repeat the same here.

5.  By the Notice of Decision dated 19 September 2014 (“Director’s First Decision”), the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 17 January 2017 (“Director’s Second Decision”), the Director also rejected the applicant’s claim on BOR 2 risk.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) in respect of Director’s First Decision.  After an oral hearing on 6 May 2015, the Board dismissed the appeal on 17 September 2015.  The Board found that the applicant’s case lacked credibility as he did not raise any non-refoulement claim after he came to Hong Kong for a long period of 2 years and 8 months and he simply overstayed in Hong Kong until he was arrested by the police.  Apart from the issue of credibility, the Board also considered that the alleged land dispute was private in nature and happened more than 8 years ago, thus, the risk of harm or ill-treatment was considered to be low as the applicant could relocate internally.  There was no evidence of state involvement or state acquiescence over the alleged attacks suffered by the applicant.  Considering the totality of the evidence, the Board found that the applicant had failed to establish his non-refoulement claim under all applicable grounds.

7.  The applicant also appealed to the Board in respect of the Director’s Second Decision, but this was rejected on paper on 15 September 2017.  Although the appellant was given the opportunity to provide further documents to establish his claim on BOR 2 risk, he did not do so.  The applicant’s case having been canvassed before the Board and duly rejected in relation to the other grounds on 17 September 2015, the Board did not find the applicant to have succeeded in establishing a case under BOR 2 risk in the absence of further material, and his claim was rejected.

The Judge’s decision

8.  The intended application for judicial review was in respect of the decisions of the Director.  The Form 86 filed on 25 September 2017 did not contain any grounds for seeking relief. In the supporting affirmation, the applicant complained the following:

(i)  He was dissatisfied with the Director’s decisions and requested for an oral hearing of his case.

(ii)  It would be dangerous for him to go back to his home county.     

9.  On 27 July 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [8] – [11] for her refusal to grant leave:

“Leave to apply for judicial review

I am supposed to consider with rigorous examination and anxious scrutiny the papers and grounds of this application. The applicant has no grounds nor could he submit any during the oral hearing. He had no other submissions to make when given the opportunity during the hearing. He did not complain that the adjudicator was wrong not to conduct an oral appeal hearing nor did he complain he was deprived of a chance to be heard. However, he has said he was not satisfied in his affirmation so I will assume he feels aggrieved there was no oral appeal hearing.

Although it is never a decision to be taken lightly, I agree with the adjudicator that in this case, for the BOR 2 appeal, an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained. When the Director and the adjudicator dealt with the torture, BOR 3 and persecution risk claims, there were oral hearings and the applicant was legally represented before the Director. With the BOR 2 risk claim the applicant did not respond to an invitation to submit further information to the Director. In the notice of petition, the adjudicator took into account what the applicant submitted but found it a repetition of what had been said before. There were no new questions of law, fact or credibility that arose as a result of this assessment of his BOR 2 risk claim. Clearly the adjudicator took the view that in overall fairness the applicant would have nothing useful to contribute by way of being heard if there was a hearing.

Having read both decisions, I do not find any ground that shows there was an error of law made by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness by either decision-maker. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

The appeal

10.  The Notice of Appeal filed on 31 July 2018 set out the following:

“My life is danger in my origin country that’s why I cannot go back my motherland I humbly request to court could you please consider my situation bundle of thanks.”

11.  The applicant did not further elaborate his case in the supporting affirmation and only attached the CALL-1 Form as Exhibit A to the affirmation.

Discussion

12.  This court has repeatedly emphasised that 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.

13.  In this appeal, the applicant did not identify any error in the Judge’s decision and did not put forth any viable ground to reverse the Judge’s decision.  The appeal is thus bound to fail.  In any event, we agree with the Judge that there was no error of law made by the Director or the Board and there was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness by either decision maker.

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