RE RAI DIL KUMARI

CACV 317/2020

[2021] HKCA 481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 317 OF 2020

(ON APPEAL FROM HCAL 293 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 the 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 16 July 2020 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1510.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 February 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 22 November 2016 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The applicant filed her Notice of Appeal on 30 July 2020.  She only lodged her skeleton submissions on 5 March 2021, which was four days later than the date (on or before 1 March 2021) directed by the Registrar of Civil Appeals.  Whilst the applicant failed to explain the delay, we are of the view that the delay is minimal and thus granted relief under Order 2, rule 5 of the Rules of the High Court (Cap 4A) (“the RHC”) to allow the skeleton submissions be filed out of time and to restore the hearing.  By a letter dated 30 July 2020, the applicant gave consent to the appeal being heard by a two‑member court.

A.      Background

4.  The applicant is a national of India.  She arrived Hong Kong as a domestic helper on 17 May 2013.  After her contract ended, she overstayed and surrendered to the Immigration Department on 14 August 2015.  She lodged her non-refoulement claim on 15 January 2016.

5.  The details of the applicant’s claim and her personal background were set out in paragraph 8 of the Director’s Decision, and paragraphs 8 - 27 of the Board’s Decision.

6.  The applicant claimed that she would be harmed or killed by her boyfriend Shyam’s mother and elder brother because she attempted to convert Shyam’s religion from Hindu to Christianity.  The applicant claimed to have a long time relationship with Shyam.  However, his family members did not accept her because of her religion.  She claimed to be physically abused by Shyam’s mother but decided to endure for Shyam.  However, in around 2013, Shyam’s elder brother attempted to rape her.  Out of fear, she fled to Hong Kong for protection.

B.      The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3] and the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  A hearing for the appeal was held on 24 November 2017, during which the applicant answered questions from the Board.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed her appeal.

9.  The Board reminded itself of the applicable legal principles.  It accepted that the applicant was a credible witness and that she might indeed be mistreated in Shyam’s family.  However, the Board found that the applicant failed to establish a claim that Shyam’s family would locate her elsewhere if she left her home village.  As a result, the Board concluded that the applicant could relocate and live safely in Kolkota where she previously lived and dismissed her appeal (paragraphs 41 - 53 of the Board’s Decision).

C.      The Deputy Judge’s Decision

10.  The applicant filed a Form 86 with a supporting affidavit on 23 February 2018 seeking leave to apply for judicial review against the Board’s Decision.  Her grounds of review were summarized by the Deputy Judge at [10] of the Deputy Judge’s Decision:

“10.     On 23 February 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1) that the adjudicator failed to meet the high standard of procedural fairness in that no fair oral hearing was provided to challenge the Applicant’s credibility;

(2) that the adjudicator failed to apply high standard of fairness by taking account of irrelevant consideration in assessing her claim rendering a refusal decision;

(3) that the adjudicator after reviewing the case gave no proper reasons for the decision and without a fair oral hearing;

(4) that the adjudicator failed to take proper account of the Applicant’s experience and concerns and wrongly concluded that her experiences did not amount to torture or that there were no substantial grounds that she would be subjected to torture if she was to return to her home country; and

(5) that in rejecting the basis of the Applicant’s claim the adjudicator wrongly concluded that she could live elsewhere and that internal relocation was a viable option.”

11.  After hearing the applicant and considering the documents, the Deputy Judge refused to grant her leave to apply for judicial review with reasons set out at [11] - [15] of the Deputy Judge’s Decision:

“11. These are however just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the adjudicator had erred in the decision, or in what way did the adjudicator fail to meet the high standards of procedural fairness or take into account irrelevant information in assessing her claim, or how did the Board wrongly conclude that her experience did not amount to torture when it was factually not a case of torture. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while her complaints of no fair oral hearing for considering her credibility or of no reasons being given for the Board’s decision are also factually incorrect, as there was clearly an oral hearing held on 24 November 2017 which she did attend and testify before the Board with the assistance of an interpreter, and that the Board did in fact accept that she was generally a credible witness but concluded that her claim failed for the thorough and detailed analysis and findings as set out in paragraphs 41 ‑ 53 of its decision. As such and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

12. As has been repeatedly emphasized by the Court of Appeal, 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 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.

13. 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 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.

14. 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.

15. 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.”

D.      Grounds for appeal

12.  The grounds of appeal in the applicant’s Notice of Appeal are these: (a) the Deputy Judge erred in concluding that the Board adhered to high standard of fairness; and (b) the Deputy Judge failed to make sufficient inquiries before finalizing his decision.

13.  In her skeleton submissions, the applicant repeated her fears of returning to India.  She also complained that the Deputy Judge’s Decision lacked comprehensive analysis, that she did not have a fair oral hearing and that she was unrepresented during the hearing.

14.  At the hearing, other than relying on what were set out in the Notice of Appeal and the written submissions, the applicant said she did not want to go back to her home town as her friends told her that it was still too dangerous for her to do so.  She therefore as this court to give her some more time to stay in Hong Kong.

E.      Discussion

15.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

16.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  Third, 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 RHC.

19.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.  Bearing these principles in mind, we are of the view that this appeal has no merit.

21.  First, the applicant’s complaints against the Deputy Judge are bare and general assertions that fail to pinpoint any errors with sufficient particularities of the Deputy Judge’s Decision.  We have reviewed the Deputy Judge’s Decision and the Board’s Decision.  Contrary to the applicant’s submissions, as shown in the quoted paragraphs above, the Deputy Judge’s Decision had addressed sufficiently the applicant’s challenges against the Board’s Decision.  Besides, the applicant was given an oral hearing before the Deputy Judge.  She did not advance any details as to why the hearing was not conducted fairly.  Thus, these do not constitute viable grounds of appeal.

22.  Second, insofar as the applicant’s complaint about the alleged lack of legal assistance is concerned, we note that in the applicant was able to identify the alleged errors said to be committed by the Board in her supporting affidavit for the leave application before the Deputy Judge.  In addition, the applicant was also able to identify the alleged errors said to be made by the Deputy Judge in the Deputy Judge’s Decision.  Therefore, there is nothing to suggest that the applicant suffered any prejudice from the alleged lack of legal assistance.  In any event, this court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: [18] of Re Zunariyah [2018] HKCA 14; [11] of Re Zahid Abbas [2018] HKCA 15; [11] of Re Tariq Farhan [2018] HKCA 17; and [13] of Re Lopchan Subash [2018] HKCA 37. In this respect, she was provided with legal representation under the Duty Lawyer Scheme in relation to her claim before the Director.  There is therefore no merit in this ground.

F.       Disposition

23.  For all these reasons, there is no basis to disturb the Deputy Judge’s Decision.  We dismiss the appeal.