CACV 195/2019
[2019] HKCA 922
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 195 OF 2019
(ON APPEAL FROM HCAL NO 1038 OF 2017)
________________________
| BETWEEN |
| | Mahalingam Silambarasan | Applicant |
| | and | |
| | Torture Claims Appeal Board /
Non‑refoulement Claims Petition Office | Putative Respondent |
| | and | |
| | Director of Immigration | Putative Interested Party |
________________________
Before: Hon Kwan VP and Toh J in Court
Date of Hearing: 13 August 2019
Date of Judgment: 16 August 2019
________________________
J U D G M E N T
________________________
Hon Kwan VP (handing down the Judgment of the Court):
1. This is the applicant’s appeal against the decision of Campbell-Moffat J on 12 April 2019. By her decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. The applicant did not attend the hearing of this appeal. We will deal with this on the basis of the papers lodged in court.
2. The applicant is a national of India who entered Hong Kong illegally by boat on 16 January 2016. He surrendered to the Immigration Department on 18 January 2016 and submitted a non-refoulement claim by way of written representation on 24 June 2016. His claim was made on the basis that he would be harmed or killed by Ravikumar and his associates who belonged to the political party called All India Anna Dravida Munnetra Kazhagam (AIADMK) because his family refused their party to erect a stage on his family’s land.
The Director’s decision
3. By a Notice of Decision dated 29 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].
4. The Director considered that there are no substantial grounds to believe that the risk of harm the applicant perceived is likely to materialize as the low intensity of past ill-treatment is indicative of the unlikelihood of future risk of harm upon his return to India. The Director further assessed that the problem between the applicant and Ravikumar and his associates was solely a private dispute and there is nothing to demonstrate that he has any problem because of his race, religion, nationality of membership of a particular social group or political opinion. The availability of state protection and internal relocation alternatives further lowers or negates the perceived risk. Thus, the non-refoulement application was rejected by the Director.
The Board’s decision
5. The applicant’s appeal against the Director’s decision was heard by the Board on 1 November 2017. After detailed analysis of the available information and thorough assessment on the applicant’s evidence including the additional information about his new assertion regarding the threat from the lender, the Board found that the threat of harm is localized. The applicant also agreed that he would not face any other substantial risk of serious or significant harm were he to relocate to another part of India. The Board concluded that the applicant’s claims for non-refoulement protection are not made out on any of the applicable grounds and rejected the appeal on 4 December 2017.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 8 December 2017 to seek leave to apply for judicial review against the decision of the Board on the grounds that the Board’s decision was unfair, his life was threatened by his enemies and he needed time to obtain all supporting documents.
The judge’s decision
7. The judge found no error of law or procedure in the adjudicator’s determination. The judge considered that the applicant has no realistic prospect of success in the intended judicial review and rejected the leave application on 12 April 2019.
The grounds of appeal
8. The applicant filed a Notice of Appeal against the decision of the judge on 24 April 2019. He also lodged a skeleton submission on 4 July 2019. His grounds of appeal in these documents may be summarized as follows:
(1) The decision makers failed to take into account the considerations of psychological strain and threats resulting from repeated threats to the applicant in person by his enemies;
(2) The decision makers 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;
(3) The Board and the Director failed to comply with their duty to make sufficient inquiries into the country of origin conditions of his claim and adopted a passive approach in contravention of high standards of fairness;
(4) The Board and the Director failed to take into account relevant considerations or took into account irrelevant consideration;
(5) The applicant’s claim may seem to be personal or a private dispute but he would face real risk if he were to be returned to India.
9. Except ground 5 above which was briefly mentioned in the affirmation filed on 8 December 2017, these grounds were not raised in the leave application made to the judge in the court below.
Legal Principles
10. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
11. 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 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.
12. 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.
13. In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.
14. 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
15. Save for the ground that the applicant would face real risk because of the threats from his enemies, the assertions contained in his notice of appeal and skeleton submissions were not raised in the application for leave to apply for judicial review. An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below[5].
16. Despite the fact that the applicant had failed to particularize his complaint against the adjudicator in his application for leave to apply for judicial review, the judge had considered the papers carefully including the extensive review of the adjudicator and found there was no error of law or procedure.
17. The applicant has not 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. He failed to raise any viable grounds of appeal for this court to reverse the judge’s decision.
Disposition
18. As there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review, we hereby dismiss this appeal.
| (Susan Kwan) | (E Toh) |
| Vice President | Judge of the
Court of First Instance |
The Applicant (Appellant), acting in person, absent
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] 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.
[3] 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.
[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.
[5]Re Qadir Sher[2018] HKCA 160 at §11