CACV 148/2019
[2019] HKCA 720
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 148 OF 2019
(ON APPEAL FROM HCAL NO 491 OF 2018)
________________________
| BETWEEN |
| | Harpreet Singh | Applicant |
| | and | |
| | Torture Claims Appeal Board /
Non‑refoulement Claims Petition Office | 1st Putative Respondent |
| | Director of Immigration | 2nd Putative Respondent |
________________________
Before: Hon Kwan VP and Pang JA
Date of Judgment: 28 June 2019
________________________
J U D G M E N T
________________________
Hon Kwan VP (giving the Judgment of the Court):
1. This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam on 19 March 2019. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.
2. The applicant is a national of India who entered Hong Kong as a visitor on 7 August 2014. He began to overstay from 22 August 2014 and surrendered to the Immigration Department on 5 November 2014. He raised a non-refoulement claim on 30 December 2014 on the basis that if he were to return to India, he would be harmed or killed by his uncle and/or his men due to a land dispute.
3. According to the applicant, his uncle is a powerful man who is a retired army officer and now a police inspector. When the applicant learned that his grandfather was about to have all the land registered in the uncle’s name, he tried to stop the registration. The uncle and some police officers threatened and assaulted the applicant. Several policemen even opened fire at him on one occasion.
The Director’s decision
4. By a Notice of Decision dated 2 September 2016, the Director rejected the applicant’s non-refoulement claim. The decision covered torture risk[1], BOR 3 risk[2] and persecution risk[3].
5. The Director decided that the low intensity and frequency of ill-treatment from the applicant’s uncle and/or his men in the past is indicative of a small future risk of harm upon his return to India. He also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.
6. By a notice of further decision dated 11 July 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk[4]. The Director considered that the applicant failed to establish a personal and real risk of his absolute and non‑derogable rights under the Hong Kong Bill of Rights being violated upon his return to India.
The Board’s decision
7. The applicant appeared at the hearing of the appeal against the Director’s decisions on 18 January 2018 with his lawyer. The Board found that the evidence does not suggest that the applicant was being targeted for torture by the government, the applicant has not suffered severe ill-treatment or serious harm reaching the minimum level of severity, there is reasonable availability of state protection and there is no substantial risk or any substantial basis of fear if he lives somewhere else rather than his home village. The appeal was rejected by the Board on 8 March 2018.
The intended application for judicial review
8. The applicant filed a Form 86 and an affirmation on 27 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.
The judge’s decision
9. The Judge dealt with the leave application in relation to the Board’s decision only as the applicant cannot seek judicial review against the Director’s decisions, following the decision of the Court of Appeal in Re Moshsin Ali[5].
10. The applicant alleged that the adjudicator failed to consider properly the issues of state protection and state acquiescence, failed to conduct sufficient and independent inquiry or critical analysis of Country of Origin Information (“COI”), failed to justify why he preferred certain COI, failed to consider supporting documents and evidence, cherry-picked information, took into account irrelevant consideration including the manner of his latest departure from India, failed to consider his psychological strain arising from the threats, and failed to give sufficient reason for his decision.
11. The judge considered that the adjudicator had given sufficient and clear reasons for his determination with respect to all the four applicable grounds (torture risk, persecution risk, BOR 2 risk and BOR 3 risk) and had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. There was no error of law or procedural unfairness in the adjudicator’s decision. As the applicant has no realistic prospect of success in the intended application for judicial review, the leave application was refused on 19 March 2019.
The grounds of appeal
12. The applicant filed a Notice of Appeal against the decision of the judge on 26 March 2019.
13. The grounds of appeal stated in his notice of appealmay be summarized as follows:
(1) The judge failed to consider psychological strain and threats to the applicant resulting from repeated threats to him and/or beating or threats to members of his family;
(2) The judge failed to consider the concept of extended state acquiescence as expounded in TK v Jenkins[6];
(3) The judge failed to give reasons for assessment of lack of BOR 3 risk and/or insufficient basis to support conclusion of lack of BOR 3 risk;
(4) The judge failed to consider the effectiveness of the steps taken by the country of origin in relation to violence and terror against vulnerable persons and whether there had been a failure of due diligence on the country of origin authorities to take responsibility under the convention against torture.
14. These grounds were also raised, against the Director and the Board, in the previous application for leave to apply for judicial review.
Non-compliance with unless order
15. The appeal was scheduled to be heard on 25 June 2019. Directions were given by the Registrar of Civil Appeals on 12 April 2019 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.
16. The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 28 May 2019). As the unless order of the Registrar was not complied with, the hearing date has been vacated. By letter dated 4 June 2019, the court informed the applicant that the hearing date of his appeal on 25 June 2019 has been vacated and that his appeal will be dealt with on paper by the Court of Appeal.
Legal Principles
17. The relevant principles regarding an appeal in a non‑refoulement case have been stated comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14 and are as follows.
18. 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.
19. 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. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
20. 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.
Analysis and disposition
21. The judge has stated the reasons for his decision in detail in paragraphs 32 to 38 of the decision. The judge’s determination is well justified. The applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. None of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge.
22. There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review. We therefore dismiss this appeal.
| (Susan Kwan) | (Derek Pang) |
| Vice President | Justice of Appeal
|
The Applicant (Appellant), acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[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.
[4] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5][2018] HKCA 549, CACV54/2018, unreported, 24 August 2018, at §45.
[6] [2011] HKCFI 1513, HCAL 126/2010, 21 October 2011.