RE MUTHUKRISHNAN SEIVARAJAN

CACV 495/2020

[2021] HKCA 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 495 OF 2020

(ON APPEAL FROM HCAL NO. 700 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 15 September 2020 in HCAL 700/2018 refusing leave to the applicant to apply for judicial review against the decision of Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 22 January 2018 in which the Board confirmed the decision made by the Director of Immigration (“the Director”) dated 24 January 2017.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 21 January 2021, the applicant shall lodge with the court two sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 7 April 2021 (due to Easter holidays) but he failed to do so.  The Registrar further directed that in the event the applicant failed to lodge his skeleton argument, he shall be deemed to have waived his right to have an oral hearing for this appeal.  As it is appropriate to do so, this Court will proceed to consider this appeal on paper. 

Background

3.  The Applicant is a national of India who arrived in Hong Kong on 24 September 2005 with permission to remain as a visitor up to 8 October 2005.  However, he did not depart and overstayed.  He was arrested by police on 13 June 2006 and was then referred to the Immigration Department for investigation.  On 25 June 2006, he raised a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Torture Claim”) by way of written representation on the basis that if he were to return to India he would be harmed or killed by some Tamil terrorist group for refusing to carry out their illegal activities.  After the Torture Claim was rejected, he sought non-refoulement protection on the same basis.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 2276. 

4.  By the Notice of Decision dated 24 January 2017, the Director decided against the applicant’s non-refoulement claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  On 1 February 2017 the applicant lodged an appeal to the Board against the Director’s decision, and there was an oral hearing on 26 October 2017.  By its decision made on 22 January 2018, the appeal was dismissed.  For the reasons stated at [22] and [23] of the decision, the Board accepted the applicant’s claim of being involved in certain disputes with the Tamil-speaking group but found no reliable evidence that they were looking to harm or kill him or would still have any adverse interest in him.  The risk of harm would further be reduced as state/police protection is available upon his return to India.  For the aforesaid reasons, his claim for non-refoulement protection failed on all applicable grounds.   

6.  On 23 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date, he merely repeated his claim that his life would be in danger if refouled to his home country.

The Judge’s decision

7.  The applicant did not request for an oral hearing.  The Judge disposed the application on paper and by the CALL-1 Form dated 15 September 2020, the Judge refused to grant leave the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [9] – [12] for his decision:

“9.  ……As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.  

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

12.  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.”

The Appeal

8.  On 21 September 2020, the applicant filed his Notice of Appeal against the Judge’s decision in which he set out the following grounds of appeal:

“I can’t go back to my county at this moment because my life is not save there. Please help me to stay in Hong Kong so that I can save my life.”

General Principles

9.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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

10.  The applicant had failed to provide any proper ground of appeal to pinpoint any error of law or raise any discernible ground against the Judge’s decision and his appeal is doomed to fail.

11.  Here, the applicant’s case was rejected by Board on the grounds that he failed to show that his fear is well-founded as after his alleged ill-treatment by the terrorist party, he was able to move freely in his home country and encountered no problem.  Further, with a long lapse of time of more than 12 years (at the time of the Board’s hearing), it is unlikely that the applicant would still be the target of his enemy or face any risk of harm if refouled.  It is within the province of the Board to reach its findings and conclusions which in our view, is eminently reasonable and justified.

12.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny and there is nothing amiss in his decision.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.