RE HARPREET SINGH

CACV 144/2020

[2020] HKCA 889

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 144 OF 2020

(ON APPEAL FROM HCAL 1608/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 22 May 2020, Deputy High Court Judge K W Lung (“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 26 July 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 27 January 2017 rejecting the applicant’s non-refoulement claim.

2.  On 29 May 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  He arrived in Hong Kong on 23 September 2014 and was refused permission to land, whereupon he lodged a non-refoulement claim with the Immigration Department. 

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed by a neighbor (affiliated to a political party which was in opposition with the one supported by the applicant’s family) who did not want the applicant to live next to him.  The factual background was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2020] HKCFI 890).

5.  By notices of decision dated 28 November 2014 and 27 January 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them. The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4].

6.  The applicant made separate appeals to the Board against the Director’s decisions.  For the appeal against the Director’s decision dated 28 November 2014, the applicant attended an oral hearing on 19 March 2015, after which the Board on 22 April 2015 dismissed that appeal.  In that decision, the Board found the applicant’s claim to be totally unreliable and rejected his factual assertion that there was a neighbour who did not want the applicant to live at the land purchased by his father.  The Board found that the applicant’s assertion of the land being purchased by his father was implausible given the huge disparity in the father’s income and the price of the land in question.  The applicant has not sought to judicially review the Board’s decision dated 22 April 2015.

7.  For the appeal against the Director’s decision dated 27 January 2017 on BOR 2 risk, the Board decided not to hold a hearing, and dismissed that appeal on 26 July 2018 on the basis that the applicant’s claim was totally unreliable and that there was no evidence that the applicant would be subject to BOR 2 risk.

Decision of the court below

8.  On 13 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision of 26 July 2018.  His grounds for seeking relief, as stated in his affirmation in support of his Form 86, were that his problem was not yet solved and that his life would be in danger if he were to return to his country.

9.  Following a hearing on 2 August 2019 to which the applicant had been notified but did not attend, the Judge refused to grant leave to apply for judicial review on 22 May 2020.  The reasons for the refusal were set out at [14] – [18] of the Form CALL-1 ([2020] HKCFI 890, HCAL 1608/2018) as follows:

“ 14. I note that the Board had decided not to hold a hearing for assessment of BOR 2 risk. See paragraph 6 of the Board’s Further Decision. The Board was entitled to do so in accordance with section 15, Schedule A of the Ordinance. The applicant has not taken up this issue in his affirmation.

15. The Board had referred to its Further Decision that on the facts of the case, the Board placed no credibility on his evidence. Shone of factual basis in support of his claim, the applicant failed to establish a prima facie case for his claim.

16. The Board found that the applicant had not set out his claim on BOR 2 risk and it dismissed his appeal.

17. There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

18. In the circumstances, the applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

Appeal to this Court

10.  On 29 May 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which his stated grounds of appeal were

“ I am not satisfied with the decision because its away from facts and reality with are related with my case. There is no transparency in these decision. Please accept my application and allow me to process further my case.” [sic]

11.  The applicant lodged his written submissions on 14 September 2020.  The applicant submitted that his life would still be in danger if he were to return to his country, that matters related to his case were ignored by the Board, and that conditions in his country are much different than what is thought.

12.  The applicant further submitted that his enemies are still looking for him and he cannot protect himself and neither can the police.  He said death and torture in custody are common in his country along with corruption and impunity.

13.  However, in those submissions the applicant did not provide any details or particulars to substantiate his arguments.

Legal principles

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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 purpose 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.  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.  In his Notice of Appeal and his submissions, the applicant did not provide any particulars to substantiate of his arguments.  Nor did he identify any specific errors in the Judge’s decision or other potential grounds for reversing the Judge’s decision.  General assertions without particulars relating to the specific facts and situation of an applicant cannot constitute 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.

16.  The Board rejected the applicant’s claim for non-refoulement protection based on its adverse finding on the applicant’s reliability and credibility and on its finding that was no evidence that the applicant would be subject to BOR 2 risk.  Such findings 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.  In light of the sound reasons given by the Board to reject the applicant’s factual assertion, we are of the view that the applicant had no basis to challenge the same (and he did and could not do so in this judicial review directed only against the second Board decision).

18.  In such circumstances, the Judge’s observations are fully justified.

19.  For these reasons, this appeal is dismissed.