RE SUKHJINDER SINGH

CACV 172/2019

[2019] HKCA 1337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 172 OF 2019

(ON APPEAL FROM HCAL 606 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):

1.  This Court (Chu JA and Wong J) gave Judgment on 21 October 2019 dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 April 2019 refusing his application for leave to apply for judicial review concerning his non‑refoulement claim.  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our Judgment and will not be repeated here.

2.  The applicant subsequently applied, by a Notice of Motion dated 24 October 2019, for leave to appeal to the Court of Final Appeal.  On 29 October 2019, the Registrar of Civil Appeals directed the applicant to lodge written submissions by 7 November 2019 and if there is written submission in opposition by the party / parties who has / have been served with the Notice of Motion it be filed within 14 days after having been served with the submission.

3.  The Registrar had further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.

4.  The applicant filed a written submission on 4 November 2019.  No submission in opposition has been filed by one of the putative respondent, the Torture Claims Appeal Board.  In a letter dated 8 November 2019, the Director of Immigration indicated that he will take a neutral stance to the appeal.

4.   In his Notice of Motion, the applicant stated he wants to stay here and asked for further processing of his application.

5.  The main points which the applicant stated in his submission which the court received on 4 November 2019 may be summarised as follows:

(a)     He left his country because his life was not safe there, it was difficult for him to survive;

(b)     He is not satisfied with all the decision regarding his case and criticised that the decision makers ignored some real facts which are relevant;

(c)     In his country, law and order making authorities always back up those who have power and political backup;

(d)     He cannot hide himself from these people, if he goes back to his country, he may be killed or tortured by them, these people are still looking for him;

(e)     Nobody dares to stand by him and talk to these people;

(f)      His enemies are too powerful and he has no resource to protect himself;

(g)     He wants to stay in Hong Kong until his problem is solved;

(h)     Death and torture of innocent people during police custody are common and those people responsible for this are not held accountable since they are in power; and

(i)     Culprits of crime are not brought to justice since they can bribe the police.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance[1] provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.

7.  No question of great general or public importance has been identified in the grounds in the Notice of Motion and the subsequent written submission.

8.  Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).  The applicant is simply repeating in his written submission matters which the Judge was aware of.  Indeed, at the stage of applying for leave to apply for judicial review, the applicant did not specify in his Notice (Form 86) and supporting affirmation any ground in support of his application.  The primary facts and relevant matters, however, were set out in the Notice of Decision dated 13 July 2015 and the Notice of Further Decision dated 14 December 2016 of the Director of Immigration as well as in the Decision of the Appeal Board[2] dated 1 March 2018.  There was a hearing for the application.  The judge demonstrated that he had carefully considered the case.  We found no fault in his consideration and decision.  The role of the Court of Appeal in an appeal of this nature was clearly set out in our judgment.[3]  An appeal against the refusal of leave to judicial review by a judge in the Court of First instance is not an occasion for regurgitating arguments advanced and rejected by the judge.

9.  The overall observation of the Judge was that the applicant’s case is not reasonably arguable and there is no realistic prospect of success in an application for judicial review.  We did not discern any mistake in the decision made by the Judge.

10.  In the circumstances, we cannot find any basis for granting leave to appeal to the Court of Final Appeal.

11.  By virtue of the above, the Notice of Motion dated 24 October 2019 is dismissed.

The applicant, unrepresented, acting in person

CACV 172/2019

[2019] HKCA 1162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 172 OF 2019

(ON APPEAL FROM HCAL 606 OF 2018)

_______________

_______________

_________________

J U D G M E N T

_________________

Hon Wong J (giving the judgment of the court):

The Appeal

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 April 2019 refusing him 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 1 March 2018 dismissing the applicant’s appeal against the two decisions of the Director of Immigration (“the Director”) dated respectively 13 July 2015 and 14 December 2016 rejecting his non-refoulement claim.

The applicant’s non-refoulement claim

2.  The applicant is an Indian national now 34 years of age. He arrived in Hong Kong on 15 April 2015 and when he was refused permission to land, he raised a non-refoulement claim.

3.  The applicant’s background and the details of his claim were set out in full in paragraphs 6 and 7 of the Director’s Notice of Decision dated 13 July 2015 and paragraphs 3 ‑ 52 of the Board’s decision dated 1 March 2018, and were summarized in paragraphs 1 ‑ 10 by the Judge in the Form CALL-1 dated 4 April 2019.

4.  Briefly stated, the applicant’s claim was based on his fear that, if he were to return to India, he would be harmed or killed by supporters of the political party Shiromani Akali Dal (“SAD”) because he was / is a supporter of their rival party, the Indian National Congress Party (“INC”).

The decisions of the Director / the Board

5.  The applicant’s non-refoulement claim was assessed by the Director under the Unified Screening Mechanism (“USM”).  Initially, having considered and assessed the torture risk[1], BOR 3 risk[2], and persecution risk[3], by a Notice of Decision dated 13 July 2015 the Director rejected the applicant’s claim.  Subsequently, the applicant was invited to provide additional facts if any which he considered to be relevant to his non-refoulement claim on all applicable grounds including that related to the BOR 2 risk[4].  The applicant did not provide any further information. In the circumstances, by a Notice of Further Decision dated 14 December 2016, the Director informed the applicant that the decision dated 13 July 2015 would not be affected, and that in the absence of additional information it was considered that he had failed to establish the right under BOR 2.  The applicant appealed to the Board and a hearing was held on 9 February 2017.  By its decision dated 1 March 2018, the Board dismissed the appeal and affirmed the Director’s decisions.

The decision of the Judge

6.  The applicant filed a Form 86 and a supporting affirmation on 10 April 2018 seeking leave to judicially review the Board’s decision.  However, neither in the Form 86 nor in his supporting affirmation did he state the grounds for his intended judicial review.

7.  At the applicant’s request, an oral hearing was conducted on 24 January 2019 to hear his leave application.  The Judge, having heard the applicant’s submission in Court and having considered the relevant documents, decided that there was no prospect of success in the applicant’s intended judicial review and refused to grant him leave to apply for judicial review.  The Judge set out his reasons in paragraphs 15 ‑ 20 of the Form CALL-1 dated 4 April 2019[5]:

“15. In its decision the Board found inconsistencies in the applicant’s account of events in India that undermined the credibility of his claim, that no further threats have since been made to the applicant’s father or family shows that the applicant was not specifically targeted by SAD and that after all these years that it is doubtful that they would still have any adverse interest in him, and that state protection and reasonable internal relocation alternatives are available to the applicant in other part of India that his claim failed on all applicable grounds.

16. On 10 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in his supporting affirmation of the same date did he put forward any ground for his intended challenge, and at the hearing of his application he merely stated that he was advised by his lawyer to just go ahead to make his application without any proper grounds and that problems at home have still not been resolved, which by itself cannot be accepted as a valid ground for his intended application.

17. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Re Litoun Mounsy[2018] HKCA 537.

18. The fact that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins& anor [2013] 1 HKC 526.

19. 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.

20.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds of appeal

8.  The applicant filed a Notice of Appeal dated 10 April 2019 to appeal the Judge’s decision.  He did not in the Notice put forward any grounds of appeal other than stating that he is not satisfied with the decision and reiterating his claim that his life would not be safe in India and he wants to stay in Hong Kong.

9.  In his written submission dated 2 July 2019, the applicant stressed the followings:

(1)  he has problems with some powerful people in his country who can do whatever they want;

(2)  he is not satisfied with the decision of the Board because it did not take into account, or did not do so sufficiently, his case, and in any case the decision is far from fair and transparent; and

(3)  he does not have enough sources to protect himself and he fears that if he returns he may be tortured of killed.

Discussion

10.  We heard the appeal on 14 August 2019.  At the hearing, the applicant confirmed that he had included in the papers everything in support of his appeal and has nothing to add.

11.  This Court has repeatedly emphasised that judicial review does not operate as a rehearing of the non-refoulement claim.  Evaluation of the claim and evidence and assessment of its merits is a matter for the Director and the Board, who are the primary decision makers.  The Court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  It does not provide a further avenue of appeal.  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.  The court will not interfere with the findings of the Board unless they are reversible on public law grounds.

12.  An appeal against the refusal of leave to judicial review by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and his decision would not be reversed unless the applicant 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.  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.[6]

13.  What the applicant said in this appeal are all matters raised before the Judge and have been carefully considered by him.  The applicant cannot point to any fault of the consideration and the decision of the Judge, nor do we find any. 

14.  In any event, we have considered the Board’s decision and we agree with the Judge’s observations that the applicant’s case is not reasonably arguable, there is no realistic prospect of success and leave to apply for judicial review should be refused.  We cannot discern any mistake in the decision made by the Judge. 

Disposition

15.  For the reasons we have given above, we conclude that there is no merit in the appeal.  Accordingly, we dismiss the appeal.   

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, Laws of Hong Kong.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights, section 11 of the Hong Kong Bill of Rights Ordinance (“the BOR Ordinance), Cap 383, Laws of Hong Kong.

[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 violation of the right of life under article 2 of the Hong Kong Bill of Rights, the BOR Ordinance.

[5] [2019] HKCFI 401

[6] Re: Salwant Singh, CACV 164/2019, paragraph 14(3).