|
CACV 384/2021
[2021] HKCA 1769
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 384 OF 2021
(ON APPEAL FROM HCAL 2771 OF 2018)
________________________
| RE |
RAJENDRAN SATHIYASEELAN |
Applicant |
________________________
Before: Hon Cheung JA and Lisa Wong J in Court
Date of Hearing: 16 November 2021
Date of Judgment: 30 November 2021
________________________
J U D G M E N T
________________________
Hon Lisa Wong J (giving judgment of the court):
The appeal
1. This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 5 August 2021 (“Judge’s Decision”) refusing to grant leave for judicial review. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 22 November 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) on 24 April 2018 (“Director’s Decision”).
Basis and allegations in support of NRF Claim
2. The basis of the NRF Claim made by the applicant, a national of India, is a fear of being harmed or even killed by one Simbu Devan (“Simbu”) because he hit Simbu at the wedding of a friend.
3. The circumstances giving rise to such fear have been set out in detail in paragraph 7 of the Director’s Decision and paragraphs 9 to 44 of the Board’s Decision and in gist in [5] of the Judge’s Decision in the Form CALL-1 [2021] HKCFI 2183 (“Form CALL-1”). Briefly:
(1) Simbu came from the upper caste. He had connections with members of the ruling party and was an influential local figure.
(2) In February 2014, Simbu led 6 to 7 people to disrupt a wedding that the applicant and his family were attending, saying that the venue could only be used by the upper caste.
(3) They damaged everything at the place and chased away the wedding guests. In the course of doing so, they hit and injured the applicant’s father. The applicant tried to stop them. While fighting back, he hit Simbu.
(4) After the incident, the applicant hid in Oosur without going home for 3 months. He stayed away from his home village because he had received information that Simbu was looking for him and had threatened to kill him when he saw him again.
(5) In May 2014, the applicant went into hiding in a forest for about a month.
(6) His friends advised him to leave India to seek protection from the Hong Kong government.
(7) The applicant eventually left India for Hong Kong on 2 May 2015 after living on a boat in Meemisheal for 4 to 5 months and then in the forest again for another 4 to 5 months.
(8) After arriving in Hong Kong, the applicant’s family told him that Simbu’s search for him had intensified, with people constantly watching the applicant’s house.
Arrival in Hong Kong and lodgment of NRF Claim
4. The applicant surrendered to the Immigration Department on 18 May 2015 after the expiry of his permission to stay on 16 May 2015. He raised the NRF Claim by written signification dated 27 October 2015 and submitted a Non-Refoulement Claim Form (“NCF”) on 23 March 2018.
Director’s Decision
5. After considering the information provided by the applicant in the NCF and at the screening interview on 24 April 2018, the Director found the NRF Claim unsubstantiated for torture risk[1], persecution risk[2], “BOR 2” risk[3] or “BOR 3” risk[4].
Appeal to Board and Board’s Decision
6. The applicant appealed to the Board. The Board conducted a re-hearing on 26 September 2018, at which the applicant gave evidence and answered the Board’s questions through an interpreter.
7. The Board dismissed the appeal on all 4 grounds for non-refoulement protection. In summary, the Board found many inconsistencies between the versions of events given by the applicant at different stages of the screening process, which reflected poorly on his credibility and reliability. In particular, the Board did not accept (1) that the applicant and his family were involved in an altercation with Simbu and his people at a marriage ceremony; (2) that the applicant’s father was attacked with knives; (3) that the applicant went into hiding; (4) that the applicant moved to the forest or lived on a boat to avoid harm; (5) that Simbu continued to harass and threaten the applicant and his family; or (6) that the applicant left his village and India in fear of Simbu.
Application for leave for judicial review and Judge’s Decision
8. By the Form 86 issued under HCAL 2771/2018 on 5 December 2018 (“Form 86”), the applicant applied for judicial review of the Board’s Decision[5] on the grounds (1) that the Board was unfair and unreasonable; (2) that the Board had not given him sufficient time to arrange his evidence; (3) that his right to life must be protected; and (4) that corruption in India was serious. By the supporting affirmation of the same date, the applicant just exhibited a copy of the hearing bundle before the Board.
9. The applicant did not ask for an oral hearing. The Judge refused leave on paper for the reasons set out in [12] to [16] of the Form CALL-1:
“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13.… …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.’
14. His grounds in support of this application are only his opinions and comments without any evidence in support of them and they do not assist his application. Up to date, he has not been able to say what evidence he should have prepared for the Board. The Board had found that he had no factual basis in support of his claim.
15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.”
Appeal to Court of Appeal - grounds of appeal and submission
10. By the notice of appeal filed herein on 12 August 2021, the applicant appealed against the Judge’s Decision on the grounds that (1) his life was threatened and (2) he could not produce supporting documents because of the worsening Covid-19 pandemic in India.
11. On 16 September 2021, the applicant lodged written submission, by which he insisted that his story was true and asked for more time to gather documents from India. He further claimed that it would be unsafe for him to return to India and that he felt safe here.
12. The applicant appeared in person at the hearing of the appeal on 16 November 2021. Other than repeating his appeal for more time to gather documents, he had nothing to add.
Discussion
Court of First Instance’s role in judicial review in non-refoulement claim
13. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim
14. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].
No arguable ground for judicial review
15. The applicant had not in either the Form 86 or his supporting affirmation put forward any arguable ground for judicial review based on errors of law, procedural unfairness or irrationality in the Board’s Decision. The said 4 complaints he made before the Judge were all too vague and unparticularised to be seriously considered. The proposed judicial review was doomed to fail and leave was rightly refused.
No arguable ground of appeal
16. That being the case, we do not see how it can be said that the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.
17. In any case, there is not before us any ground of appeal, properly so called, against the Judge’s Decision. The applicant does not advance the appeal by just repeating that his life would be in danger in India (which assertion had already been dismissed by both the Director and the Board) or that he has some unspecified supporting documents back home. With regard to the latter, the applicant could not possibly blame the Covid-19 pandemic for not obtaining the alleged documents as the NRF Claim was raised well before that.
18. Nonetheless, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
Disposition
19. For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.
| (Peter Cheung) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the
Court of First Instance |
The applicant was unrepresented and appeared in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] The Director was initially also named as a respondent but was subsequently renamed as an interested party by amendment of the Form 86.
|