RE LAKHWINDER SINGH

CACV 121/2019

[2019] HKCA 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 121 OF 2019

(ON APPEAL FROM HCAL 588/2018)

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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 Deputy High Court Judge Josiah Lam given on 7 March 2019 refusing the applicant leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 6 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 28 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He last entered Hong Kong in early December 2013.  He entered Hong Kong illegally from Mainland China.  He surrendered to the Immigration Department on 9 June 2015 and lodged a non-refoulement claim on 8 September 2015. 

3.  The applicant’s claim was based on threats from his relatives arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [2] to [8] of the CALL-1 Form.

4.  By a Notice of Decision dated 28 April 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 23 March 2018, the Board dismissed the appeal on 6 April 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [72] of the Board’s Decision, the Board found that the applicant’s case was for the most part not credible.  The Board accepted at [78] that there was some physical conflict but it did not believe that this escalated to a life-threatening level.  The Board was also satisfied at [87] that internal relocation would be viable.

The deputy judge’s decision

7.  The applicant filed a Form 86 on 9 April 2018 which contained the following grounds for judicial review, summarised below:

(1)   the Director’s Decision and the Board’s Decision were not reasonable or fair;

(2)   the Board failed to give him sufficient time and chance to arrange to obtain relevant evidence for his claim and appeal; and

(3)   it would be dangerous for the applicant to return.

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [36] to [42] of the CALL-1 Form:

“36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

37. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising 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.’

38. The Applicant said he was still in custody when the Board hearing took place on 23 March 2018. He thus could not prepare his proofs for the appeal.

39. In court, the Applicant said the alleged proofs were some police and hospital reports relating to incidents in 2010 but they were yet to be obtained from India. He never had possession of them and did not have them even now.

40. The alleged proofs were vague talk. There was no evidence that the Applicant had ever tried to get hold of the alleged proofs if they exited at all. There was no evidence that he had asked the Adjudicator for adjournment to get hold of such proofs. The Applicant confirmed he had submitted all the proofs he had with him to the Director and the Adjudicator. I am satisfied the Applicant had been given sufficient time and chance to prove his claim to the Director and the Adjudicator.

41. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

42. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

Grounds for appeal

9.  In the Notice of Appeal dated 13 March 2019 the applicant advanced the following grounds of appeal:

“I am not satisfied with the decision because my life is not safe in my own country. I am looking towards your kind favor so that I can save my life”

10.  In his skeleton submissions dated 10 May 2019, the applicant explained why it would be unsafe for him to return.  He claimed that the Indian authorities will not be able to protect him.

11.  The applicant agreed by a letter of 13 March 2019 that the appeal could be heard by two judges.  We heard the appeal on 10 June 2019.

Discussion

12.  The only ground of appeal raised by the applicant is the alleged danger upon his return.  This was one of the grounds for judicial review.  The judge has already considered this ground and concluded at [41] that the Board did not make any public law error in holding that the applicant’s case was incredible. The applicant failed to identify any error on the part of the judge.  As this court has often held, it is for the Director and the Board to determine issues of fact.  Judicial review is not a further avenue of appeal from such finding of fact, and the court will only interfere if public law errors on the part of the decision makers can be demonstrated.  As the judge held, no such errors were made here.  This is therefore not a viable ground of appeal.  The matters mentioned in the applicant’s skeleton submission do not take things any further.

13.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.