CACV 335/2020
[2021] HKCA 162
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 335 OF 2020
(ON APPEAL FROM HCAL NO 1904 of 2018)
________________________
BETWEEN
| | KUMAR PRADIP | Applicant
(Appellant) |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
________________________
| Before: | Hon Barma JA and S T Poon J in Court |
| Date of hearing: | 1 February 2021 |
| Date of Judgment: | 10 February 2021 |
________________________
J U D G M E N T
________________________
Hon S T Poon J (giving the Judgment of the Court):
1. This is the applicant’s appeal against the decision of Deputy High Court Judge K. W. Lung (“the Judge”) given on 31 July 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 20 August 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 24 July 2015 and 20 December 2016 rejecting his non-refoulement claim.
2. The applicant has consented to his appeal being heard by two judges of the Court of Appeal.
3. The applicant is a national of India. He entered Hong Kong on 21 April 2015 but was refused permission to land. He then lodged a non-refoulement claim on the same day.
4. The applicant’s claim was based on his fear of being harmed or killed by one Akshay Yadav and his associates as the applicant refused to work for him in his election campaign. His case was summarised by the Judge in [4-8] of the Form CALL-1[1].
5. By his decision dated 24 July 2015 (“the Director’s first decision”), the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], and BOR 3 risk[4] grounds. By a further decision dated 20 December 2016 (“the Director’s further decision”), the Director rejected also the applicant’s claim having regard to the BOR 2 risk[5] ground.
6. By its decision dated 20 August 2018 (“the Board’s decision”), the Board dismissed the appeal having regard to all applicable grounds. Primarily, the Board found that the applicant’s case was not credible. The Board held that even if the applicant’s evidence was accepted, the applicant still failed to show that he would face a substantial risk of being harmed by Akshay Yadav upon his return. The Board was also satisfied that there was no reason to suggest that state protection would not be available for the applicant and that internal relocation would be viable.
Application for leave to start judicial review
7. On 11 September 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision which contained no ground for seeking the relief.
The Judge’s Decision
8. The Judge heard the applicant at the hearing on 5 May 2020. The Judge summarized what the applicant said at [17] of the Form CALL-1:
“17. The applicant appeared before me. He explained that at the relevant time, he was being detained in the Castle Peak Bay Immigration Centre (CIC), where he was interviewed by the immigration officer with the presence of his duty lawyer. His lawyer had explained the Director’s Decision to him. His friend had also explained the Board’s Decision to him. He had no complaint against the Board, nor any comments on the Board’s findings above.”
9. After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the Judge refused to give leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [18] to [20] of the Form CALL-1:
“18. There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.
19. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.
CONCLUSION
20. I therefore refuse to grant leave to the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.”
Appeal to Court of Appeal
10. By a Notice of Appeal filed on 10 August 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds (sic):
“I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.”
Skeleton Submissions
11. In his skeleton submissions dated 31 December 2020, the applicant stated that:
(1) It is not safe for him to return;
(2) The decision makers ignored many matters related to the conditions in India and their decisions were not transparent; and
(3) There is corruption in India and the applicant is powerless against persons with political influence
Legal Principles
12. The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.
13. The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board. They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin.
14. When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision. The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here.
15. Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal. Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.
16. We heard the appeal on 1 February 2021. At the hearing, the applicant had nothing further to say.
Discussion
17. Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.
18. We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal. In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision. It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge. In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision.
19. In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions. We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions. Nor do we see any merit in the criticism of lack of transparency. The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed. There is no basis to disturb the Judge’s decision.
20. For the above reasons, we are of the view that there is no merit in the appeal. Accordingly, we dismiss the appeal.
| (Aarif Barma) | (S T Poon) |
| Justice of Appeal | Judge of the
Court of First Instance |
The applicant, unrepresented, appearing in person.
[1] [2020] HKCFI 1762
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[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 torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383.
[5] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.
[6] [2018] HKCA 524.
[7] See cases cited in Nupur Mst, op cit, §14(2).
[8] [1954] 1 WLR 1489.