SANDHU SHANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 410/2020

[2021] HKCA 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 410 OF 2020

(ON APPEAL FROM HCAL NO 2023 of 2018)

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J U D G M E N T

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Hon S T Poon J (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 24 August 2020 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 30 June 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 25 July 2016 and 24 April 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 a national of India.  He last entered Hong Kong on 23 September 2015 and was refused entry.  He lodged a non-refoulement claim on the same day. 

4.  The applicant’s claim was based on his fear of being harmed by a person named Simran as the applicant refused his demand for him to change to Hinduism.  His case was summarised by the Judge in [2-3] of the Form CALL-1[1].

5.  By his decision dated 25 July 2016 (“the Director’s first decision”), the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], and BOR 3 risk[4] grounds.  By a further decision dated 24 April 2017, the Director rejected also the applicant’s claim having regard to the BOR 2 risk[5] ground.

6.  By its decision dated 30 June 2017 (“the Board’s Decision”), the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board found that the applicant’s case was not credible.  The Board was also satisfied that there was no reason to suggest that state protection would not be available for the applicant and that internal relocation would be viable. 

The Judge’s Decision

7.  The applicant filed a Form 86 on 24 September 2018 which contained the following grounds for judicial review, as summarized by the judge at [9] of the Form CALL-1:

(1)  that the Director and the Board reached their decisions wrongly in assessing his non-refoulement claim as not reasonable or fair as required by the Wednesbury test;

(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 of the fact that the applicant was tortured at the behest of the state law enforcement agencies for which the state should be rendered liable to the applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

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

(5)  that the Director failed to consider the fact that corruption and incompetency of the administration in his country were still serious problems as reported by various human rights organization which stated testament to the applicant’s assertions which was a clear case of unfair attitude enough to render the Director’s decision void; and

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

8.  In his affirmation in support of the leave application dated 24 September 2018, the applicant deposed that:

“I am the applicant herein I am not in possession of any of my documents at the moment. I will lodge the same with court once I am released.”

9.  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 [10] to [18] of the Form CALL-1:

“10. By then the Applicant was however seriously out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11. As the last day of the three-month period for him to file his Form 86 fell on 30 September 2017, the Applicant was therefore almost 1 year late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12. In the Applicant’s case, a delay of almost 1 year must be considered as very substantial and excessive, for which he has not provided any explanation, and while it is noted that he was being detained at the Castle Peak Bay Immigration Centre (“CIC”) at the time when he filed his Form 86, even if he was there throughout the entire relevant period of 12 months, and there was no evidence from him that that was indeed the case, with legal assistance available within the facility of CIC, that in itself cannot be accepted as a valid reason for such a serious delay.

13. As for the merits of his intended application, those proposed grounds of the Applicant are all just his broad and vague assertions containing a few 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 his case or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in their consideration of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any merits or basis in any of them, nor are they reasonably arguable for his intended challenge.

14. 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.

15. 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 22 – 36 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

16. 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.

17. 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.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 27 August 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds (sic):

“The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state acquiescence in the applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

The Applicant submits that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that the applicant has failed to advice any credible evidence to prove material elements of his claim.

It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that to when he is in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

Surprisingly, the director in his Decision while referring to relevant COIs.  kept including meaning which suited his pre-conceived conclusion.  This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.”

Skeleton Submissions

11.  In his skeleton submissions dated 22 January 2021, the applicant gave a summary of the facts giving rise to his claim and submitted that:

“I know my claim is true and practical. My officer did not pay any attention on my claim ground, they want to cancel before they took my claim. All the process is just eye wash. I do not agree.

It is impossible for me to return, so please grant my leave.”

Legal Principles

12.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

13.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

14.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  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.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here. 

15.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

16.  We heard the appeal on 1 March 2021. At the hearing, the applicant had nothing further to say. 

Discussion

17.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

18.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions 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.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

19.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  Nor do we see any merit in the criticism of lack of transparency.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed.  There is no 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.