RE VIJAY KUMAR

CACV 43/2020

[2020] HKCA 716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 43 OF 2020

(ON APPEAL FROM HCAL 1616 OF 2018)

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J U D G M E N T

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Hon Wong J (giving the Judgment of the Court):

Introduction

1.  This is an appeal by the abovenamed applicant against the order of Deputy High Court Judge K W Lung (“the Judge”) made on 23 January 2020 refusing to grant him leave 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 9 August 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 5 September 2017 rejecting the applicant’s non-refoulement claim.

2.  On 9 March 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.  The applicant is an Indian national.  He arrived in Hong Kong on 29 November 2014 and was permitted to stay as a visitor until 13 December 2014.  He overstayed and was arrested by police on 5 January 2015.

4.  The applicant lodged a non-refoulement claim on 7 January 2015.  The factual background was succinctly summarized by the Judge in [4] ‑ [7] of the Form CALL‑1[1] and we do not intend to repeat it here.  Briefly stated, the claim of the applicant was based on the fear that, if he was to return to India, he would be harmed or even killed by his paternal uncle, Mr Ram Dayal, because of a land dispute.

5.  The Director assessed the applicant’s claim on all applicable grounds, namely BOR 3 risk[2], persecution risk[3], torture risk[4], and BOR 2 risk[5].  By the notice of decision dated 5 September 2017, the Director rejected the claim.

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 10 May 2018, during which the applicant was interviewed by the Board. The Board found that applicant’s evidence was inconsistent and contradictory, and in particular his evidence as to his uncle’s death threats and political involvement was fanciful and unbelievable.  The Board dismissed the applicant’s appeal on 9 August 2018.

7.  On 13 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.

The application for leave to apply for judicial review

8.  In his affirmation in support of his Form 86[6], the applicant stated the followings in seeking relief:

“I want to appeal against the decision of Ms. Gina TOWNEY, member of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office for refusing my appeal. The decision is unfair and not reasonable. Therefore I wish to apply for a Judicial Review to my appeal.”

9.  Following a hearing on 25 July 2019 at which the applicant attended in person before the Judge, on 23 January 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] ‑ [20] of the Form CALL-1[7], as follows:

“12. The Board considered the applicant’s evidence and only accepted that he is a national of India, but had not accepted any of the broader claims. It set out its reasons in the Board’s Decision [16-50], in particular:

a. the applicant had given prior inconsistent statements [44];

b. the applicant had given prior inconsistent statements in relation to contact with his friends and his uncle’s change of connection with political parties [45]; and

c. his evidence as to his uncle’s involvement with the political parties was broad, fanciful and unbelievable [46].

Application for leave to apply for judicial review

13. He filed Form 86 for leave to apply for judicial review of the Board’s Decision.

14. In his affirmation, the applicant said that the Board’s Decision was unfair and unreasonable.

DISCUSSION

15. The applicant appeared before me and he confirmed that he was able to speak freely and tell his stories fully before the Immigration officer and the Board.

16. I put those findings to him and asked him for his comments. He said that he had no comments.

17. It is clear that the Board rejected the main facts in support of his claim.

18. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

19. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

20. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

Appeal to this Court

10.  On 9 March 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which he stated the followings as grounds of appeal:

“I am not satisfied with the decision because its away form facts and reality with are related with my case. There is no transparency in these decision. Please accept my application and allow me to process further my case.” [sic]

11.  Pursuant to the Court’s directions, the applicant filed his written submissions on 9 July 2020.  The applicant stressed that his life will not be safe in his country as his enemies are still looking for him.  He will not be able to protect himself and neither can the police, due to his enemies’ manpower and strong political support.  He also submitted that matters related to his case were ignored, and that conditions in his country are much different than what was thought.  He said death and torture in custody are common in his country, along with corruption and impunity.

Discussion

12.  We heard the appeal on 18 August 2020.  At the hearing, the applicant confirmed that he had included in the papers he filed everything in support of his appeal and has nothing to add.

13.  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[8]. 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, as well as 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 to apply for judicial review 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 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 decision of 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.

14.  Having perused the Notice of Appeal and the submissions of the applicant, which are all the papers which the applicant had filed, we note that he did not provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.

15.  Indeed, what the applicant placed before the Judge for the purpose of applying for leave to apply for judicial review also lacked substance.  It has been consistently held that general assertions without particulars cannot be effective grounds to support a judicial review.[9]

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the applicant’s credibility.  Such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.

17.  Having considered the materials before us, we are of the view that the Judge’s observations, as quoted in paragraph 9 above, are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

Disposition

18.  For these reasons, we do not see any prospect of success in this appeal. Accordingly, we dismiss this appeal.

[1]  [2020] HKCFI 249, pages 6 ‑ 8 in the Appeal Bundle.

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6]  Page 11 in the Appeal Bundle.

[7]  See footnote 1.

[8]  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].

[9]  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.