RE JASKARN SINGH

CACV 268/2019

[2019] HKCA 1113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 268 OF 2019

(ON APPEAL FROM HCAL 164 OF 2018)

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R E A S O N S  F O R  J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) as stated in Form CALL-1 dated 11 June 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 1399, refusing leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (“the Board”) dated 2 February 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 7 July 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  At the end of the hearing, we dismissed the appeal and indicated that we would hand down our reasons.  This is what we do now.

Background

3.  The applicant is a national of India.  He entered Hong Kong illegally on 1 January 2016 and surrendered to the Immigration Department on 6 January 2016.  He lodged a non-refoulement claim on 16 May 2016.

4.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 6 of the Director’s Decision, and paragraph 9 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that if he were to return to India, he would be harmed or killed by Jaggi Singh (“JS”) due to a land dispute.

6.  JS was said to be a member and a local leader of the Bharatiya Janata Party (“BJP”). BJP in alliance with the Shiromani Akali Dal (a powerful party in Punjab) controlled the government and police.  On the other hand, the applicant said he and his family supported the Indian Congress Party.  The applicant claimed that JS did not like his family and in 2014, JS claimed ownership of the applicant’s family land.  The applicant and his family objected and they were harassed and assaulted by JS.  In particular, in August 2014, JS and his followers attacked the applicant’s father and caused him serious injury.  Although they reported this to the police, the police did not investigate and it was the applicant’s belief that JS bribed the police.  Feared of the constant threats from JS and the inactions of the police, the applicant left his home country.

The Director’s Decision and the Board’s Decision

7.  By the Director’s Decision which covered the BOR 3 risk^[1], the persecution risk^[2], the torture risk^[3] and the BOR 2 risk^[4], the Director decided against the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 3 January 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

9.  The Board found that the applicant was not a credible witness.  It rejected the applicant’s version of events for being inconsistent and held that the applicant fabricated these events for his claim (paragraphs 25 - 36 of the Board’s Decision).  On this basis alone, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 5 February 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review were that the Director and the Board acted Wednesbury unreasonably, that the Board failed to give him sufficient time and chance to arrange relevant evidence and that it would be dangerous for the applicant to return to his home country.

11.  The Deputy Judge heard the applicant’s leave application on 13 September 2018.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 24 ‑ 30 of the Deputy Judge’s Decision:

24.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

25.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising 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 [country-of-origin information (‘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.’

26.  The Applicant complained the decision of the Adjudicator was not reasonable or fair. He also complained the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence. However, he could not elaborate his complaints except saying the Director and the Adjudicator did not look into his case carefully. He said they should spend more time to analyse his case.

27.  The Applicant’s complaints were vague and lacked proof.

28.  The Adjudicator’s report showed the Adjudicator had made careful inquiry with the Applicant over his claim. He had given the Applicant sufficient opportunities to explain his case. The Adjudicator did not accept the Applicant’s explanation in the end. He found him incredible and rejected his claim. He had proper basis to do so. The Adjudicator had stated his reasons clearly in his report.

29.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

30.  The Applicant’s complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

Grounds of appeal

12.  The applicant filed the Notice of Appeal dated 19 June 2019 to appeal the Deputy Judge’s Decision. He advanced his grounds of appeal as follows:

“the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not official recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

13.  Apart from the mere repetition of his claim in the Notice of Appeal, the applicant did not identify any errors in the Deputy Judge’s Decision.

14.  In his skeleton submission dated 19 August 2019 filed in support of the appeal, the applicant further quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.

15.  At the hearing, the applicant confirmed that he relied on all the grounds of appeal set out in the Notice of Appeal and his written submission.  He reiterated that in his country, bad people controlled the police and ordinary people liked him was unsafe.  When asked by the court what specific errors he said the Deputy Judge had committed in the Deputy Judge Decision, he emphasized that no one during the assessment process, including the Deputy Judge, had looked into his claim in detail and properly.

Discussion

16.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

17.  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 the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

18.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

20.  In light of the above, it is thus incumbent on the applicant to point out any errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any errors in the Deputy Judge’s Decision.  The grounds advanced by the applicant in the Notice of Appeal are against the Board’s Decision, which were properly addressed by the Deputy Judge in his reasons.  These are no viable grounds of appeal.

21.  For the reference in his skeleton submission to the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim, this is again related to complaints directed at the Director and the Board.  They had been properly addressed by the Deputy Judge in his reasons.  The Deputy Judge had also reminded himself to review the Board’s Decision under “rigorous examination and anxious scrutiny”.  The applicant simply has not identified anything in this appeal to demonstrate why the Deputy Judge was wrong in his reasons.  The authorities referred to the skeleton submission therefore do not assist the applicant in this appeal.

22.  In any event, we have reviewed the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions. We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

23.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.