RE LAKHWINDER SINGH

CACV 21/2018

[2018] HKCA 246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 21 OF 2018

(ON APPEAL FROM HCAL 71 OF 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 an appeal against the decision of Li J dated 19 January 2018 refusing leave to the applicant to apply for judicial review. The applicant is from India. He travelled through Macau to Hong Kong on 5 January 2014 and was given permission to remain for 14 days, but overstayed after the expiry of the permission to remain. He surrendered to the Immigration Department on 21 January 2014 and was arrested on the same date. He lodged a non-refoulement claim on 3 March 2014. The claim was based on his fear of being harmed or even killed by the family members of his girlfriend because her family disapproved of their relationship.

2.  The Director of Immigration (“the Director”) decided against the claim on 2 September 2015.  The Director considered that the alleged risk of harm would unlikely materialize.  The availability of state protection and the possibility of internal relocation would also lower the perceived risk of harm.  The decision covered BOR 3 risk, persecution risk, and torture risk.  By a Notice of Further Decision dated 31 October 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against him. 

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing on 18 November 2016, the Board found that the applicant was neither honest nor reliable and that he failed to establish his case.  The Board dismissed the appeal on 26 January 2017.     

4.  The intended judicial review was in respect of the decision of the Board.  The Form 86 filed by the applicant on 10 March 2017 did not contain any grounds for seeking relief.  In his supporting affirmation of the same date, the applicant deposed that:

“I was unable to submit my additional facts and grounds according to my BOR2 claim. Decision maker did not rely on any of the new facts and reached to decision just rely on my old facts and grounds. There are some errors by law in the decision and even during the Hearing, Interpreter did not inform me about my additional facts rights which can be relevant to my BOR claim. Decision maker prefer to ignore the overwhelming of the evidence of the violence towards the minority searching for the unrealistic silver lining. The decision maker provided the website materials and ignored the actual reports of how the complaint system actually operated in real life...” (sic)

5.  After summarizing the facts and background of the case and giving due consideration to the decision of the Board, the judge gave the following reasons in refusing leave at [12] – [14] of the CALL-1 Form:

“12. This court held a hearing on 18 August 2017. The applicant explained that B’s family members set fire to his house several months ago. They again threatened to kill him if returned to India. B’s father was a police officer who had framed him up for murder. There was no formal charge document only oral allegation from the police. B’s father would know his whereabouts even if he did not return to Jammu.

13. I agree with the Adjudicator that there was no logical reason for the applicant to leave India. He could have left his home village and relocate elsewhere. The alleged threats, recent or in the past, are not credible given the analysis above.

14. In my judgment, there is no public law ground for review. The Applicant’s application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.”

6.  In the Notice of Appeal of 31 January 2018, the applicant advanced the following ground of appeal:

“The Judge did not address any of my grounds discussed in the Affirmation attached to my Form 86.”

7.  By his letter dated 14 February 2018, the applicant agreed that this appeal can be disposed of on paper.

8.  The applicant lodged his written submissions on 6 March 2018.  In substance, the written submissions repeated what was deposed to in his affirmation of 10 March 2017, as set out in paragraph 4 above.

9.  It is not correct to say that the applicant was not able to submit any additional facts and grounds in respect of his BOR 2 claim.  As indicated in the Director’s Further Decision, he was invited to submit additional facts or materials in respect of BOR 2 risk, but he did not do so.  As shown in [10] of the CALL-1 Form, the judge was clearly apprised of this fact.

10.  In the absence of any additional facts or materials, the Director was entitled to proceed on the basis that the applicant’s claim under BOR2 risk was actually founded on the same primary materials relating to his other claims, at which time the applicant had the benefit of legal representation.  We cannot find anything amiss in the process.

11.  On the facts of this case, we cannot see any additional basis to advance a claim regarding BOR 2 risk other than the matters relied upon in respect of BOR 3 risk, torture risk and persecution risk.

12.  Although the applicant made a general complaint that there were legal errors in the decision, no specific errors were identified.  Having read the full decision of the Board, we do not see any errors of law or procedure in it.  

13.  Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in the absence of any legal error. 

14.  Having read the full decision of the Board, we are of the view that it was perfectly open to the Board to come to its conclusion that the applicant’s story was not credible.  As such, there is no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatments which meets the high threshold required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

15.  Having considered the submissions of the applicant in light of the materials before us, we are of the view that the judge’s observations are justified.  As we have said, we do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  There is no reasonable basis to challenge the decisions of the Director and the Board.  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, and dismiss the appeal accordingly.