CACV 197/2019
[2019] HKCA 923
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 197 OF 2019
(ON APPEAL FROM HCAL NO 874 OF 2017)
________________________
| BETWEEN |
| | Jaspreet Singh | 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 Deputy High Court Judge Bruno Chan on 12 April 2019. By that 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.
2. The applicant is a national of India who arrived in Hong Kong on 20 October 2013 with permission to remain as a visitor up to 3 November 2013. He overstayed in Hong Kong and was arrested by police on 26 November 2013. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he were to return to India, he would be harmed or killed by his paternal uncles over family disputes.
The Director’s decision
3. By a Notice of Decision dated 27 November 2015, the Director rejected the applicant’s non-refoulement claim. The decision covered torture risk[1], BOR 3 risk[2] and persecution risk[3].
4. The Director considered that the applicant’s problem with his paternal uncles is solely a private land dispute. The low intensity and frequency of ill-treatment in the past is indicative of the unlikelihood of future risk of harm. Besides, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk. Thus, the non-refoulement application was rejected by the Director.
5. By a Notice of Further Decision dated 13 June 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[4].
The Board’s decision
6. The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 5 September 2017. The Board held that the applicant lied about the circumstances in which his father killed his paternal uncle. The Board also considered that the applicant has not made out a case in respect of all applicable grounds. Therefore, the appeal was rejected on 3 November 2017.
The intended judicial review
7. The applicant filed a Form 86[5] and an affirmation on 13 November 2017 to seek leave to apply for judicial review against the decision of the Board on the following grounds[6]:
(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into Country of Origin information (“COI”) and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;
(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry‑picking and putting weight on irrelevant COI in the consideration of his claim;
(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether there has been a consistent pattern of gross and mass violation of human rights in India;
(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and having misdirected himself as to the extended meaning of state protection;
(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or basing the decision on incorrect or inaccurate facts;
(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;
(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and
(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.
The judge’s decision
8. The judge decided that the applicant’s complaints were just broad and vague assertions without particulars or specifics or elaborations except for the complaint about the hearing bundle. The judge did not find anything amiss arising from the hearing bundle as most of the documents should be well familiar to the applicant as they had already been made available to him earlier when he still had legal representation and he never raised any issue or requested for further time at the oral hearing before the adjudicator. The judge reviewed the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, he did not find any error of law or procedural unfairness in them or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
9. The judge was not satisfied that the applicant has any prospect of success in the intended judicial review and refused the leave application on 12 April 2019.
The grounds of appeal
10. The applicant filed a Notice of Appeal against the decision of the judge on 25 April 2019. He stated in his notice of appeal that he is not satisfied with the judge’s decision as it will lead his life towards more danger. He cannot go back due to the problem in his own country and he may be tortured or killed if he returns.
11. In his skeleton submission, the applicant submitted that the decision of the Board is not fair and the Board ignored the actual facts which are related to his case. He further submitted that the police in his home district in Punjab, India are also looking for him and many people disappeared in police custody. He does not have enough resources to protect himself from his enemies.
12. As the applicant’s grounds of intended judicial review are broad and vague, these grounds of appeal may be regarded as being covered in the previous grounds of the intended judicial review.
Legal Principles
13. 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.
14. 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.
15. 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.
16. 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
17. The applicant’s grounds of appeal are just bare assertions without evidence in support or viable arguments to reverse the judge’s decision. The judge is correct in deciding that there is no reasonably arguable basis upon which the applicant could found a claim for judicial review. As there is no merit in the appeal, the appeal should be dismissed.
| (Susan Kwan) | (E Toh) |
| Vice President | Judge of the
Court of First Instance |
The Applicant (Appellant), appearing 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 right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] [11-14]
[6] See §12 [8]; [31-34]