RE VERMA SUNNY

CACV 605/2018

[2019] HKCA 491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 605 OF 2018

(ON APPEAL FROM HCAL 1075 OF 2017)

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Campbell‑Moffat J given on 19 December 2018 refusing the applicant leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Adjudicator of the Non‑refoulement Claims Petition Office dated 1 December 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 31 July 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 13 January 2015.  He overstayed and later surrendered to the Immigration Department.  He lodged a non‑refoulement claim on 24 March 2015. 

3.  The applicant’s claim was based on threats from a relative (elder brother of his maternal grandfather) arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL‑1 Form:

“ The applicant is an Indian national.  He was born on 8 September 1989 in Mandhetar, Himachal Pradesh.  He received 17 years of formal education obtaining a bachelor’s degree in hotel management and worked in a hotel between 2011 and 2014.  The applicant’s claim arises over an inter familial dispute over land between himself and his great uncle who has affiliations with the Indian National Congress (“INC”).  The land in question had been transferred to the applicant in March 2014.  Shortly afterwards, four to five masked men with weapons approached the applicant and informed him that his great uncle wished to develop the land.  They demanded that the applicant transfer part of the land to the great uncle but he refused. As a result, they assaulted him with wooden poles.  The applicant went to hospital afterwards but did not require any medical intervention.  He did try to report the assault to the police but they refused to register the complaint as he believed they had been in touch with the leader of the INC.  A month later, the applicant was approached once again by a group of men wearing masks who attempted to persuade the applicant to sign a transfer of his land.  He refused and was assaulted, this time with swords and knives.  During this assault, one of the attackers accidentally killed one of the other assailants. The applicant managed to escape but was shot at.  The applicant himself was not hurt during this assault.  As a result of these attacks, the applicant went to live with his sister but whilst staying with her, he continued to receive telephone threats and so he moved to Chandigarh where he worked part time in a hotel.  In late 2014, his great uncle and his men attempted to grab him in Chandigarh but he managed to escape unhurt.  He had no idea how it was that his great uncle knew where he was at that time.  As his sister advised him to leave India, the applicant decided to come to Hong Kong.”

4.  By a Notice of Decision dated 31 July 2017 (“the Director’s Decision”), the director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk,^[1] BOR 3 risk,^[2] the persecution risk,^[3] and the torture risk.^[4]

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on17 November 2017, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non‑refoulement protection.

6.  At [41], [43], [45] and [47] of the Board’s Decision, the Board found that there is no evidence that the applicant will suffer from any of the proscribed harm upon his return to India.  The Board was also satisfied at [54] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a form 86 on 14 December 2017 which contained no ground for seeking relief.

8.  In the affirmation in support of the leave application dated 14 December 2017, the applicant said that his life was in danger and he might get killed if he went back to India. He wanted the court to look into the matter and reconsider his case.  He also asked for time to prove his case.

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [12] of the CALL‑1 Form:

“ Leave to apply for judicial review

9. Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decision of the Adjudicator. The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10. There were no grounds of review. The applicant seeks for a re‑hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

12. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 24 December 2018 the applicant said that he is not satisfied with the judge’s decision because he has a problem in India and asked to be allowed to stay in Hong Kong until the problem is resolved.

12.  In his skeleton submissions dated13 March 2019, the applicant continues to assert it is unsafe for him to return to India. He says that “they” will come to his place to locate him, that they can bribe the police and that he does not have the resources to protect himself.

13.  The applicant agreed by a letter of 24 December 2018 that the appeal could be heard by two judges.  We heard the appeal on 17 April 2019.

Discussion

14.  The applicant did not identify any error in the judge’s decision and failed to provide any viable grounds of appeal.  Further, the bare assertion that it is unsafe for him to return is not a proper ground for seeking leave for judicial review or for this appeal.  In any event, the Board has adequately evaluated and dismissed this aspect of his claim in the Board’s Decision and the applicant has not been able to fault the decision‑making process.

15.  We do not ourselves consider there is any error in the decision of the judge.  There is therefore no merit in the appeal and we dismiss it accordingly.