RE MANPREET SINGH

CACV 286/2020

[2021] HKCA 87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 286 OF 2020

(ON APPEAL FROM HCAL NO 1327 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 14 July 2020[1] dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 4 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 13 December 2017 rejecting his non-refoulement claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is an Indian national aged 24.  He entered Hong Kong illegally and surrendered to the Immigration Department on 23 March 2015.  On 14 July 2015 he raised a non-refoulement claim based on his fear of being harmed or killed by his schoolmate Raja because he had reported his drug dealing activities to the college.     

4.  The applicant’s claim was set out in detail in the Director’s decision at [6] and the Board’s decision at [20] to [56], and summarised by the Judge in [1] to [4] of the Form CALL-1. 

5.  In gist, the applicant claims that Raja’s family was associated with the Shiromani Akali Dal party and his uncle was its president in five villages.  In 2013, the applicant came to know that Raja was selling dangerous drugs and recruiting followers in the college.  There was going to be an election of student union president in July 2014, and Raja was a candidate for the post.  The applicant and his friends twice spoke to the college principal about Raja’s drug activities and voiced their concern over his suitability as president of the student union.  The election was later cancelled.  Raja was very angry and wanted to take revenge on the applicant. The applicant had to stay away from home.  In late 2014, the applicant and his friends were assaulted by 5-6 of Raja’s associates when they were in a Sikh Temple.  After this, they went to Amritsar and then to Delhi from where the applicant departed for Shenzhen and later sneaked into Hong Kong.  

6.  By his decision dated 13 December 2017, the Director rejected the applicant’s claim on the torture risk[2], persecution risk[3], BOR 2 risk[4] and the BOR 3 risk[5] grounds. 

7.  The applicant appealed the Director’s decision to the Board.  The Board heard the appeal at an oral hearing held on 15 June 2018 during which the applicant gave evidence and answered questions from the Board. By its decision dated 4 July 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s account to be untruthful and unreliable and did not attach any weight to his evidence.  The Board did not accept he was targeted by Raja for the reasons and in the manner he claimed, or at all.  The Board also did not accept he was assaulted and took the view that he invented a case in the hope of advancing his claim for non-refoulement protection. The Board concluded that the applicant failed to establish any real risk of harm and that his non-refoulement claim failed on all applicable grounds.     

8.  On 9 July 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  The grounds put forward by the applicant were summarized by the Judge in [10] of the Form CALL-1 as follows:

“(1)  that the Director and the adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim;

(2)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim;

(3)  that the Director failed to take into account that the Applicant was tortured at the behest and in full collusion of the police and the state law enforcement agencies that the state would be rendered liable to the Applicant by cause of the state and its officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4)  that the Director failed to consider or give sufficient weight to those listed COI which supported the Applicant’s aversions that the police in his country would not be able to protect;

(5)  that the Director referred to relevant COI which suited his preconceived conclusion which was a clear case of unfair attitude in itself enough to render his decision void;

(6)  that the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s country was a very serious problem as reported by various human rights organization which stated testament to the Applicant’s assertions;

(7)  that the Director failed to attain high standard of fairness required by the Wednesbury test that his decision should be considered unreasonable in the scope of public law;

(8)  that the adjudicator failed to make sufficient enquiries before finalizing the determination; and

(9)  that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.”

9.  The Judge heard the application at an oral hearing held on 10 December 2019.  For reasons set out in [11] to [16] of the Form CALL-1, the Judge refused to give leave and dismissed the application:

“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 adjudicator had erred in their decisions, or in what way was state acquiescence relevant to the Applicant’s claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director fail to apply high standard of fairness in assessing his claim, or how did the adjudicator fail to make sufficient enquiry or to give him sufficient opportunity to provide his evidence in support of his claim or his appeal. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 57 – 65 with the benefit of hearing him in his oral evidence and in answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  The fact is that it has been established by the Director in his 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, 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.

15.  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.

16.  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 his leave application.”

10.  By a Notice of Appeal filed on 23 July 2020, the applicant appealed the Judge’s order to this court.  He gave the following as his grounds of appeal:

(1)  The decision was far from the facts and the reality in his case.

(2)  There was no transparency in the decision.

11.  The applicant had filed a written submission. Apart from repeating what was stated in the notice of appeal, the applicant also advanced the following arguments:

(1)  Many things related to his case had been ignored and this shows the decision was not transparent.

(2)  The situation in his country is very different from what people think.  It is hard to live and to stand in front of his enemy.

(3)  Torture and deaths of innocent people in police custody is common.  Police would support those who bribe them.  They and other authorities were controlled by people with political influence.  It is very difficult to get justice under such corrupt environment.  He has no power to fight them and has to live under threat and fear. 

(4)  He is really in danger in his country and if he were to return there his life will become worsened due to his enemies.  People are helping him to solve his problem in his country, and he asks to be allowed to stay in Hong Kong until the problem is solved.

12.  We heard the appeal on 14 January 2021.  At the hearing, the applicant said he had nothing to add orally.

13.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

16.  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.

17.  In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision. It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge. 

18.  The applicant had complained that the decision did not reflect the reality and that he would face danger and risk of harm if refouled.  However, assessment of credibility and evaluation of risk of harm are matters for the primary decision makers and not for the court.  The applicant’s complaint in this regard is misplaced.  There is also no basis for his general assertion that there was no transparency.

19.  We have reviewed the Board’s decision.  Like the Judge, we see no errors of law, or mistake of fact, or procedural impropriety in its decision and/or the process by which it reached the decision.  We also agree with the Judge that the applicant had only put forward vague and generalised complaints against the Director and the Board, which did not warrant the court to intervene by judicial review.   There is, in the circumstances, no proper basis to disturb the Judge’s decision. 

20.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.