RE SHAIKH SHAJADA

CACV 404/2020

[2021] HKCA 493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 404 OF 2020

(ON APPEAL FROM HCAL 1937/2018)

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JUDGMENT

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

Introduction

1.  On 11 August 2020, Deputy High Court Judge Bruno Chan (“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 10 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 7 March 2017 rejecting the applicant’s non-refoulement claim.

2.  On 21 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  He last arrived in Hong Kong on 21 October 2013 and was permitted to remain as a visitor until 4 November 2013.  On or about 11 November 2013, he made a request for asylum with the United Nations High Commissioner for Refugees Hong Kong office.  The applicant surrendered himself to the Immigration Department on 20 November 2013, and lodged his present non-refoulement claim on 19 March 2014.

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his girlfriend’s family who objected to their relationship.  He is a Muslim, while his girlfriend’s family are Hindus and are supporters of the All India Trinamool Congress (“TMC”).  The factual background was succinctly summarized by the Board at [11] to [28] of the Board’s Decision and by the Judge at [2] – [5] of the Form CALL-1 ([2020] HKCFI 1837).

5.  By notice of decision dated 7 March 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. 

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 28 March 2018, during which the applicant gave evidence before the Board.  The Board found that while some of the applicant’s factual claims were credible, others were not. 

7.  The Board considered that the applicant’s return to India on 28 September 2013 (after he had initially fled on 15 September 2013) and after having entered Hong Kong without making a claim for protection undermined the credibility of his claim of facing a genuine risk of harm.  The Board considered that the credibility of his claim was further undermined by the fact that until the Board hearing, he did not raise the incident of being threatened by TMC members.

8.  In addition, due to the paucity of details and vagueness of his description of and evidence about his girlfriend’s family, the Board did not accept that her family was as influential as claimed.  The Board found that there was no more than a remote risk that members of her family or TMC would harm the applicant in the event of return to India.  As such, the Board considered that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.

9.  Thus the Board dismissed the applicant’s appeal on 10 September 2018 on all the applicable grounds.

Decision of the court below

10.  On 14 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  His grounds for relief on judicial review of the Board’s decision, were summarized by the Judge at [10] of the Form CALL-1.

11.  Following a hearing on 19 May 2020 at which the applicant appeared before the Judge, on 11 August 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [14] of the Form CALL-1 ([2020] HKCFI 1837, HCAL 1937/2018) as follows:

“ 10. On 14 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the Director and the Board failed to conduct inquiries from reliable sources and did not fully study the realities of his case and the consequences of him being forced to return to his home country;

(2) that the Board just refused his appeal without any reasonable ground; and

(3) that the Director and the Board failed to realize that relocation is practically impossible as the fight against terrorism touches new high and that state protection is non-exist that their decisions betrayed a bias and formula approach unlikely to fairly assess the danger to his life.

11. These are however all 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 his case or how the Director or the Board had erred in their decisions, or in what way did they fail to conduct inquiries from reliable sources as to the options of state protection or internal relocation relevant to his case, or in what way was the refusal of his appeal unreasonable. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant either on paper or at the hearing of his application before me despite my invitation for him to do so. 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 of his grounds reasonably arguable for his intended challenge.

12. 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.

13. In the Applicant’s case, 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 him to relocate to other part of India, there is simply no justification to afford him 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.”

Appeal to this Court

12.  On 21 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he will face hardship if he were to return to his home country, that the Board relied on news sources that are not officially recognized, or are simply hearsay, and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

13.  This Court directed on 25 January 2021 that the applicant must lodge his written submissions on appeal by 22 February 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

14.  The applicant failed to lodge any submissions as directed thereby waiving his right to oral hearing.  The hearing date was vacated and this appeal is processed on paper without an oral hearing.

Legal principles

15.  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.  And

(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

16.  The applicant did not provide any details or particulars in support of his grounds of appeal and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be 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.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse findings on the credibility in respect of the injuries he suffered at the hands of Laxmi’s three brothers and on its assessment that the girlfriend’s family was not as influential as claimed and that staying at Mumbai was a viable safe option.  The Board considered that there was and there would be no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable.  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. 

18.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and the applicant did not put forward valid public law ground for the court’s intervention on the findings of the Board.  The Judge has applied the relevant legal principles correctly.  The Judge was plainly right in refusing leave. 

19.  For these reasons, this appeal is dismissed.