SUMAN PREET KAUR v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 376/2020

[2021] HKCA 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 376 OF 2020

(ON APPEAL FROM HCAL NO 1380 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 5 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 13 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 3 August 2017 rejecting the applicant’s non-refoulement claim.

2.  On 17 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  She last arrived in Hong Kong on 28 March 2008 and was given permission to remain as a visitor, ultimately extended until 8 July 2008. She did not depart and has overstayed.  The applicant lodged a non-refoulement claim on 6 June 2014.

4.  The applicant’s claim was based on the fear that, if she returned to India, she would be harmed or even killed by her brother BS due to a monetary debt she owed him, and that she would be persecuted or discriminated against due to her separation from her husband who is a Hong Kong resident, with whom she gave birth to two daughters in Hong Kong. The factual background was succinctly summarized by the Judge in [2] – [3] of the Form CALL-1 ([2020] HKCFI 1446).

5.  By notice of decision dated 3 August 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 3 April 2018, during which she was interviewed by the Board.  The Board was not convinced that the Applicant was a reliable witness because her evidence was vague, unbelievable and inconsistent on key aspects of her claim.  The Board concluded that her conflict with her brother was a private monetary dispute. The Board also concluded that even on her own evidence, there was generally no discrimination in India against separated women.  Further, on her own evidence, she did not feel threatened by her brother BS and the reason she wanted to stay in Hong Kong was because she considered that her daughters would receive better education here.  The Board also found that in any event, state protection was available, that the alleged risk from BS was of a localized nature and that internal relocation was viable.  Therefore, the Board dismissed the applicant’s appeal on 13 June 2018 on all the applicable grounds.

Decision of the court below

7.  On 13 July 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The applicant’s grounds for seeking relief were set out at [8] of the Judge’s reasons for refusing leave below.

8.  Following a hearing on 13 December 2019 at which the applicant attended in person before the Judge, on 5 August 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [8] – [14] of the Form CALL-1 ([2020] HKCFI 1446, HCAL 1380/2018) as follows:

“8. On 13 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for her intended challenge:

(1) that the Director failed to appreciate or give any proper importance or weight to the presence of State acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting her non-refoulement claim;

(2) that the Director failed to take into account or give sufficient weight to the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies which was the direct result of misconduct of the police for which the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Director had to consider or give sufficient weight to those COI which support the Applicant’s aversions that the police in her country would not be able to protect;

(4) that the Director relied only on relevant COI which suited his pre-conceived conclusion which was a clean case of unfair attitude shown by the Director which render his decision void;

(5) that the Director failed to consider that corruption and incompetency of the administration in the Applicant’s home country was still a very serious problem as supported by various human rights organization reports on the matter which stated testament to the Applicant’s assertions;

(6) that the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision and should therefore be considered as unreasonable in the scope of public law;

(7) that the adjudicator failed to make sufficient enquiry before finalizing the decision; and

(8) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to her non-refoulement claim as well as her appeal.

9. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decision, or what relevancy was state acquiescence to her claim, or in what way did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or to give her sufficient opportunity to adduce her evidence in support of her claim or appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended application.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 43 of its decision with the benefit of hearing her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

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

13. 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.

14. 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 her leave application.”

Appeal to this Court

9.  On 17 August 2020, the applicant filed her Notice of Appeal against the Judge’s decision, in which she reiterated Grounds (1), (4), (7) and (8) that she had already advanced before the Judge, as set out at [8] of the Judge’s reasons above.  She also seemed to state that Ground (1) applied to the decisions of the Board and the Judge as well.

10.  On the same day that she filed the Notice of Appeal, the applicant agreed in writing for the appeal to be heard by 2 judges.

11.  Pursuant to the Court’s directions of 17 December 2020, the applicant lodged her written submissions on appeal on 6 January 2021. Those submissions consist largely of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case, save that in paragraph 5, she stated the Board acted in a procedurally unfair manner by failing to properly assess her credibility.  Nevertheless, in those submissions the applicant did not provide any details or particulars as to how the Board failed to properly assess her credibility, let alone any particulars in support of her other arguments.

12.  When the applicant appeared before this court, she added only that she would like to stay in Hong Kong until her daughter turned 18 and could apply for her to stay as her dependant, and that her husband has not been supporting them.  Whilst her wishes are understandable, they do not advance her appeal.    

Legal principles

13.  In assessing the merit of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

14.  As mentioned earlier, the applicant did not in her Notice of Appeal or submissions provide any particulars in support of her arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.  What she said before this court did not advance her case.

15.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the reliability of her evidence and indeed on admissions she made on her own case.  The Board’s findings that there was no real risk of harm to the applicant if she were to return to India, that the risk was of a localized nature and that internal relocation was viable, are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge was plainly right to refuse leave. 

Order

18.  For the above reasons, this appeal is dismissed.