RE SONI PRATIK

CACV 357/2021

[2021] HKCA 1702

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 357 OF 2021

(ON APPEAL FROM HCAL 1527/2018)

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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 To (“judge”) given on 28 April 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Director of Immigration (“Director”) dated 29 May 2017 rejecting the applicant’s non-refoulement claim (“Director’s Decision”), but not the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 9 July 2018 (“Board’s Decision”) dismissing the applicant’s appeal against the Director’s Decision.

2.  The judge, by an order dated 14 July 2021, granted the applicant an extension of time to appeal. 

Background

3.  The applicant is a national of India.  He last entered Hong Kong on 10 January 2016 as a visitor and was permitted to remain until 24 January 2016.  He overstayed and surrendered to the Immigration Department on 27 January 2016.  He lodged a non-refoulement claim on 26 May 2016. 

4.  The applicant’s claim was based on a fear of being harmed or killed by his creditors in India.  The details of the applicant’s claim have been summarised by the judge at [5] and [15] of the judge’s decision[1].

5.  By a Notice of Decision dated 29 May 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[2], BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

6.  The applicant appealed to the Board.  After a hearing on 29 May 2018, and having assessed the applicant’s claim on all applicable grounds, the Board dismissed the appeal by way of the Board’s Decision.

7.  At [77] to [86] of the Board’s Decision, the Board found that the applicant had failed to establish any risk of harm if he were to return to India.  On the evidence, the applicant has suffered no harm inflicted by his creditors, nor has he or his family received any threats from them since his departure from India. The Board was also satisfied at [87] to [94] that internal relocation would be viable. The Board accordingly rejected the appeal on all applicable grounds.

The judge’s decision

8.  The applicant filed a Form 86 on 1 August 2018 which contained no ground for seeking relief.  The decision in respect of which relief was sought was the Director’s Decision, but not the Board’s Decision.

9.  In his affirmation in support of the leave application filed on 1 August 2018, the applicant deposed that:

“I don’t want to go to my country (INDIA) as I know I have fear of my life if I go back by my creditors can harm me, that’s why I don’t want to go.”

10.  The judge, noting the subject decision of the intended judicial review, stated:

“4. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the [Director’s Decision] because there are established procedures of appeal against the decision of the Director to the Board and the Applicant has invoked those procedures. The Director’s decisions in the [Director’s Decision] had been superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali. Instead of dismissing his application in respect of the [Director’s Decision], in the Applicant’s best interest and in the interest of justice, the Court treated his application as if it were one made in respect of the Decision of the Board. If meritorious, the Court would grant leave to amend the application and then leave to apply for judicial review. For the purpose of this hearing, the Court also treated the Applicant’s complaints against the Director as if they were also directed at the Board.”

11.  After summarizing the facts and background of the case and giving due consideration to the evidence and the Board’s Decision, the judge refused to grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [19] to [22] of the judge’s decision:

“19. In his affirmation filed in support of his application for leave to apply for judicial review, the Applicant did not put forward any specific grounds other than that he did not want to go back to India as he feared his creditors would harm him. At the hearing, the Court attempted to solicit specific grounds for his application. But all that he said was that the Board did not believe his evidence. He is only challenging the Board’s finding of facts. He has no complaint about unreasonableness or irrationality in the Board’s Decision or procedural unfairness.

20. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. 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 court will scrutinize 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.

21. The Board had carefully set out the Applicant’s case in four pages and analysed his evidence in another four pages. It then devoted another three and half pages in assessing his credibility. It gave full reasons for its assessment, based largely on the inconsistencies in the Applicant’s evidence and inherent improbability of his case. Having rigorously examined the Decision, the non-refoulement claim form and all the relevant papers with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault.

Conclusion

22. Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board. The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonably arguable. There is no realistic prospect of success.  Accordingly, leave to apply for judicial review of the decision of the Director in the [Director’s Decision] dated 29 May 2017 and the Decision of the Board dated 9 July 2018 is refused.”

Grounds for appeal

12.  In the Notice of Appeal filed on 21 July 2021, the applicant stated that:

“The High Court judge refused my leave, but I do not find any cause. He also did not write any cause. He just make copy of the adjudicator decision, so I want to appeal.”

13.  In his written submissions dated 4 October 2021, the applicant repeated his fear of being killed by his creditors, and stated the Board’s Decision to be “wrong”, but did not identify any or any specific error in, or complaint against, the judge’s decision.

14.  We heard the appeal on 1 November 2021.  The applicant appeared at the hearing and repeated the matters stated in his Notice of Appeal and written submissions. He also indicated that he wished to provide a further document in support of this appeal.  We indicated that he should do so within 2 days and that we would consider whether or not to admit it.

Discussion

15.  In his Notice of Appeal, the applicant contended that the judge did not provide reasons or “cause” in refusing his application for leave for judicial review, and that he simply repeated the Board’s Decision. Having considered the judge’s decision (in particular at [19] to [22]), we are of the view that the judge had duly considered the application by examining the Board’s Decision for errors of law, procedural unfairness or irrationality before refusing leave. There is no merit in this ground of appeal.

16.  In his skeleton, the applicant only repeated his fears of a return to India.  He did not identify any error committed by the judge.  It is therefore not a viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify errors on the part of the judge that would justify this court in intervening.

17.  The applicant lodged further document on 3 November 2021, after the hearing of the appeal.  The new evidence consisted of a document (4 pages in total) in an Indian language with no accompanying certified English translation, as well as a letter dated 2 November 2021 in English signed by the applicant, in which he repeated his oral submissions to the court at the hearing of the appeal[6].  The Indian language document was not the subject of any formal application for leave to adduce fresh evidence.  As it is untranslated it is not possible for us to be satisfied that the 3 requirements laid down in Ladd v Marshall[7]have been met.  This court will not therefore admit the evidence lodged by the applicant on 3 November 2021.  As for the applicant’s letter, it simply reiterates his oral submissions and contains no new points.

18.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. See:  Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The judge considered the Board’s Decision and found no basis for intervening.  In our view, he was correct to do so.

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