RE SK DANISH

CACV 234/2020

[2021] HKCA 75

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 234 OF 2020

(ON APPEAL FROM HCAL NO. 1770 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“the Judge”) on 24 June 2020 in HCAL 1770/2018 refusing 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 24 August 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 29 January 2018.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 9 October 2020, the applicant shall lodge with the court 2 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 24 November 2020.  Despite the letter sent by the court on 14 October 2020 reminding the applicant of the aforesaid directions, he failed to do so.  The Registrar further directed that in the event of the applicant’s failure to lodge skeleton arguments, the applicant shall be deemed to have waived his right to have an oral hearing and this Court shall proceed to determine the appeal on paper only.

Background

3.  The applicant is a national of India.  He came to Hong Kong on 21 December 2014 as a visitor and was permitted to stay until 4 January 2015.  He did not depart and overstayed in Hong Kong since 5 January 2015.  He was arrested by the police on 21 January 2015 and was then referred to the Immigration Department for investigation.  On 23 January 2015, he lodged his non-refoulement claim by way of written representation on the basis that if he were to return to India, he would be harmed or even killed by his enemy because of a business dispute.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1290. 

4.  By the Notice of Decision dated 29 January 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 18 May 2018, the Board dismissed the appeal on 24 August 2018.  The Board accepted that there was a business dispute between the applicant and his enemy Suraj but rejected his new evidence at the hearing that his brother was attacked at home and was hospitalized for one month and that their dispute had become a wider religious issue or had taken on any religious connotations. On the evidence, the Board was not satisfied that there was any real risk that he would suffer any of the proscribed forms of harm at the hands of Suraj or his men if he returned to India. The Board did not find any real risk of harm should the applicant return to his home country and his claims were not made out on any of the applicable grounds.

The Judge’s decision

6.  On 28 August 2018, the applicant filed his Form 86 to apply for leave for judicial review against the decision of the Board.  In his affirmation in support of his application, he did not set out any ground in support of his application. He did not say what error the Board had committed in coming to its decision.

7.  The Judge heard the application 6 December 2019 and by the CALL-1 Form of 24 June 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, gave the following reasons in refusing leave at [14] – [17] of the CALL-1 Form:

“DISCUSSION

14.  The applicant appeared before me and he confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board.

15.  I put the Board’s findings to him and asked him if he had any comments on them. He said that he had no comments.

16.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The applicant is unable to show that he has reasonable prospect of success for his intended judicial review.”

The Appeal

8.  On 2 July 2020, the applicant filed his Notice of Appeal.  He did not provide any grounds of appeal save for saying that he does not want to go back to his home country because his life is still in danger.

General Principles

9.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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.

(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

10.  The applicant has not put forward any viable ground against the Judge’s decision and the appeal is bound to fail. 

11.  Having read the decision of the Board, we take the view that the Board had carefully considered the applicant’s evidence and found that it was no more than a private business dispute and the applicant had not suffered any harm apart from an oral threat and attack which did not attain the minimum level of severity that would be considered as torture.  It was perfectly open for the Board to reach its findings and conclusions which was eminently reasonable and justified.

12.  We are also satisfied that the Judge had duly considered the Board’s decision with vigorous examination and anxious scrutiny and we found no errors of law or procedural unfairness or irregularities in the Judge’s decision.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

[1]  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.

[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 torture under Part VIIC of the Immigration Ordinance, Cap. 115.

[4]  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.