KARMBIR SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 277/2019

[2019] HKCA 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2019

(ON APPEAL FROM HCAL NO 1573 OF 2018)

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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 Deputy High Court Judge K W Lung on 13 June 2019^[1]. By that decision, the judge refused to grant leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of India who entered Hong Kong as a visitor on 16 October 2015.  He overstayed and later surrendered to the Immigration Department on 2 November 2015.  He raised a non‑refoulement claim on 29 August 2016.  He claimed that if he were to return to India, he would be harmed or killed by his uncle and his people as he had refused to join a religious social group called Shiromani Akali Dal.

The Director’s decision

3.  By a Notice of Decision dated 3 November 2017, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

4.  The Director decided that the low intensity and frequency of ill-treatment from the applicant’s uncle and his people in the past is indicative of only a small future risk of harm upon his return to India.  It was not accepted that the asserted ill-treatment had attained a minimum level of severity.  The Director also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

5.  The applicant appeared at the hearing of the appeal against the Director’s decision on 23 July 2018.  The Board concluded that the applicant’s evidence is not truthful and lacked consistency and credibility.  As for the applicant’s reliance on BOR 5^[6], it was held that he cannot bring himself within BOR 5 to resist removal pursuant to section 11 of the Hong Kong Bill of Rights Ordinance, Cap 383^[7], as BOR 5 is not considered to include non-derogable and absolute rights and there is no non‑refoulement obligation on the part of the Hong Kong Government. Therefore, the appeal was rejected by the Board on 3 August 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 8 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  The grounds were summarized in the judge’s decision at paragraph 10.

The judge’s decision

7.  The judge held that the applicant failed to set out any exceptional circumstances which would allow him to apply for judicial review of the decision of the Director, as he had pursued an appeal from the Director’s decision to the Board and the Board had heard his appeal and made its decision^[8]. As for the application to seek judicial review of the Board’s decision, the judge considered that the applicant had failed to show reasonable chance of success in the intended judicial review on any of the grounds raised for the reasons stated in paragraphs 15 to 20 of his decision.  Thus, the leave application was refused on 13 June 2019.

8.  The applicant filed a Notice of Appeal against the decision of the judge on 24 June 2019. 

The grounds of appeal

9.  The grounds of appeal in the notice of appeal may be summarized as follows:

(1)  The Director failed to appreciate or give proper weight to the presence of state acquiescence in the applicant’s case.  The Director, the adjudicator and the court have failed to take such argument into account and that the Director has failed to give sufficient weight to such argument before reaching the decision.

(2)  The adjudicator failed to make sufficient enquiry before finalizing the determination.  The adjudicator stated that the applicant has failed to advise any credible evidence to prove material elements of his claim.

(3)  The applicant is a torture claimant who has no or limited options at his disposal to bring his evidence before the tribunal. The adjudicator has failed to give sufficient chance for him to arrange relevant evidence for his non-refoulement claim as well as his appeal.

(4)  The Director kept including meaning which suited his pre‑conceived conclusion while referring to relevant Country of Origin Information (“COI”) in his decision.  The unfair attitude shown by the Director is enough to render his decision void.

10.  Similar ground as the above ground (4) has been raised in his leave application before the judge but the other grounds were not covered.

11.  In his skeleton argument, the applicant stressed that high standards of fairness are required in the determination of a torture claim and criticized the adjudicator for acting in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  Similar argument was put forward in his original leave application save that he did not mention the lack of proper assessment on his credibility previously.

Legal Principles

12.  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.

13.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

14.  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.

15.  The Court of Appeal will not generally entertain fact‑and‑evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

Analysis and disposition

16.  As the decision by the Board has superseded the decision of the Director and represents the final decision on the claim at the end of its processing, it was confirmed by the Court of Appeal decision in Re Moshsin Ali^[9] that the decision of the Director is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the Board is pursued by a claimant.  Therefore, the judge was correct in dismissing the application for leave for judicial review of the Director’s decision. 

17.  Apart from the ground in relation to the complaint regarding the alleged preconceived conclusion of the director and his unfair attitude, the other grounds of appeal were not raised in the original leave application. 

18.  An appeal is not the occasion for an application to introduce new grounds after the original grounds had failed at the court below^[10]. The Court of Appeal will not entertain the applicant’s grounds which have not been canvassed at the court below and for which leave has not been sought within time by the applicant.

19.  In any event, the judge’s determination is well justified.  His reasons for his decision were explained in detail in paragraphs 11 to 20 of his decision. 

20.  In his skeleton argument, the applicant criticized the adjudicator for acting in a procedurally unfair manner.  In fact, the applicant confirmed at the hearing before the judge that he considered he had had a fair hearing before the adjudicator^[11].  Furthermore, the adjudicator had set out in detail his assessment on the applicant’s credibility in paragraphs 57 to 70 of his decision.  The applicant’s criticism is untenable.

21.  The applicant 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. 

22.  There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  We therefore dismiss this appeal. 

[1] [2019] HKCFI 1537

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[6] The right to liberty and security of person under article 5 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[7] The Board’s decision, §§73-78 and the cases there cited: Ubamaka v Secretary for Security & Anr (2012) 15 HKCFAR 743; Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 

[8] [2019] HKCFI 1537, §11

[9] [2018] HKCA 549, unreported, 24 August 2018, at §45

[10] Re Qadir Sher [2018] HKCA 160 at §11

[11] [2019] HKCFI §15