RE MITHUN KUMAR

CACV 273/2021

[2021] HKCA 1537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2021

(ON APPEAL FROM HCAL NO 984 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 20 May 2021 refusing him leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 1423.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 4 April 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 10 October 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of India. He entered Hong Kong illegally in June 2014 and was arrested by the police on 18 June 2014. He lodged a non-refoulement claim on 20 October 2014. His claim was raised on the basis that he would be harmed or killed by the head of his home village over a land dispute in India upon refoulement. The factual details of the applicants’ claim were summarised by the Deputy Judge at [2] - [3] of the Leave Decision.

4.  By a Notice of Decision dated 10 October 2017, the Director assessed the applicant’s claim on all applicable grounds including the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3], and the BOR2 risk^[4] and determined it against him. Taking into account all relevant circumstances, the Director assessed the risk of harm from the village head and his men upon his return to India as low. The Director considered that state protection would be available to the applicant and, on the basis of the Country of Origin Information (“COI”), that internal relocation alternatives would be available and reasonable.

5.  On 16 October 2017, the applicant appealed against the Director’s Decision to the Board. He attended a hearing before the Board on 23 March 2018 and gave evidence. The Board dismissed his appeal on 4 April 2018. The Board found the applicant’s claim unreliable in the absence of any reliable evidence in support of his bare assertions, and in any event, internal relocation would be viable.

The Leave Decision

6.  On 31 May 2018, the applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review against the Board’s Decision. The Deputy Judge heard the applicant on 2 March 2021. By the Leave Decision, the Deputy Judge refused the application to grant to the applicant leave to apply for judicial review and held that:

“9. On 31 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Board, I do not find any reasonably arguable basis for his intended challenge.

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

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. 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.

13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The Appeal

7.  On 24 May 2021, the applicant filed his Notice of Appeal against the Leave Decision which did not contain any properly proposed grounds of appeal. Pursuant to the directions of the Registrar of Civil Appeals dated 15 July 2021, he filed a Supplementary Notice of Appeal on 20 July 2021. In it, he simply asserted that the Deputy Judge did not consider his argument and only believed the Board Decision which was totally based on COI materials and not the same with practical life.

8.  In his written submissions lodged on 16 August 2021, the applicant did not raise any grounds of appeal with any particulars to show how the Deputy Judge erred in the Leave Decision.

9.  The appeal hearing took place on 12 October 2021 before us, during which the applicant confirmed he had nothing further to add to the written materials. He only repeated he could not go back to India at the moment since there were a lot of problems.

Discussion

10.  The relevant legal principles governing the appeal in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

11.  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 Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

12.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics.

13.  The applicant had not in his Notice of Appeal, Supplementary Notice of Appeal or written submissions identified any errors committed by the Deputy Judge with sufficient particulars and specifics. As no viable ground of appeal to challenge the Leave Decision had been raised by the applicant, this appeal is bound to fail.

14.  In any event, having considered the materials before us, we have reviewed both the Board’s Decision and the Leave Decision and the reasons they gave for their decisions. We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions. There is no basis to disturb the Leave Decision.

15.  For the reasons given above, the applicant’s appeal has no merits. Accordingly, we dismiss the appeal.