CACV 122/2021
[2022] HKCA 394
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 122 OF 2021
(ON APPEAL FROM HCAL NO 1287 OF 2018)
_____________________
| BETWEEN | | |
| | Resham Singh | Applicant |
and |
| | Torture Claims Appeal Board/
Non-Refoulement Claims Petition Office | Putative
Respondent |
and |
| | Director of Immigration | Putative
Interested Party |
__________________
Before: Hon Yuen and Chu JJA in Court
Date of Written Submissions: 24 May 2021
Date of Judgment: 18 March 2022
___________________
J U D G M E N T
___________________
Hon Yuen JA (giving the Judgment of the Court):
Introduction
1. On 18 March 2021, DHCJ K.W. Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 25 May 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 26 September 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.
2. On 24 March 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing. As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.
Background
3. The applicant is an Indian national. He came to Hong Kong on 5 July 2015. He was arrested by police on 24 July 2015. On 26 July 2015, he lodged his non-refoulement claim on the basis that if refouled, he would be harmed or killed by his enemy Ranjit Singh (“RS”), who is wealthy and influential in the locality, and is a member of Shiromani Akali Dal Party (“SAD”). The applicant alleged that that was because he (the applicant) was originally a member of SAD but later became a member of the Congress Party (“CP”). The factual background of this case was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2021] HKCFI 654).
4. By a Notice of Decision dated 26 September 2017, the Director had assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.
5. The applicant appealed the Director’s decision to the Board. He attended an oral hearing on 29 March 2018. By its decision dated 25 May 2018, the Board dismissed the appeal and confirmed the Director’s decision. For the reasons set out in [47] to [55], the Board found the applicant’s evidence contradictory and implausible. The Board also noted contradictions between the information provided in the non-refoulement claim form and his oral evidence at the hearing before the Board [55] and thus rejected his case on credibility. For the aforesaid reasons, the applicant’s claim was rejected on all applicable grounds.
Decision of the court below
6. On 5 July 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision. In his supporting affirmation, he did not provide any ground for relief and only attached the Board’s decision.
7. The applicant did not request for an oral hearing and the Judge disposed of the application on paper. By his decision dated 18 March 2021, the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [12] – [17] of the Form CALL-1 as follows:
“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
13. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13.… …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.”
14. He has not set out any ground in support of his application in his affirmation.
15. Since the Board rejected his evidence on the facts of his case, he has no factual basis in support of his claim.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”
Appeal to this Court
8. On 24 March 2021, the applicant filed his Notice of Appeal against the Judge’s decision on the following grounds:
“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.”
9. In compliance with the Court’s directions of 14 May 2021, the applicant lodged his written submissions on 24 May 2021. In his written submissions, he advanced the following:
(1) His life will become worse if refouled and he was not satisfied with all the decisions made in his case.
(2) The points in his case were ignored and the decisions were not transparent. The situation of his country is different from what the decision-makers might think and it is hard for him to live and stand in front of his enemies.
(3) Torture and deaths are common in police custody in India and the police would just give support to those who bribe them.
(4) It is impossible for him to go back to work and even if he files a report to the police, the police would just inform those powerful people of the same.
(5) It was impossible for him to go back to India at the present stage and he urged the court to understand his problem and let him stay in Hong Kong until his problem is solved.
(6) His life would become worse if he were to return to his home country because of his enemies.
Legal principles
10. In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11]. For the purposes of this appeal, the salient principles are as follows:
(1) 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 on appeal, which operates as a re-hearing, 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. 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.
(2) 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, or for running arguments which could and should have been raised but not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant 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.
(3) 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. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.
Discussion
11. The applicant did not in his Notice of Appeal and written submissions provide any ground of appeal against the Judge’s decision or identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.
12. The grounds of appeal set out in the written submissions are vague and general assertions without particulars or elaboration, and they are thus not valid grounds of appeal: see Re Mizan Sikder[2019] HKCA 20; Re Aziz Nasir[2019] HKCA 578; Re Kharsu Numan[2019] HKCA 626; Re Salim Ahmed[2020] HKCA 244.
13. In the present case, the Board had rejected the applicant’s claim on the issue of credibility. Even on the applicant’s own facts, he did not sustain any serious injury in the alleged incidents of attacks and he failed to substantiate his case on all applicable grounds. The Board was entitled to make the findings as it did and the Judge rightly found there was no valid public law ground to intervene.
14. Having considered the materials before us, we are of the view that the Judge’s observations are fully justified. We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.
Order
15. For the above reasons, this appeal is dismissed.
(Maria Yuen)
Justice of Appeal | (Carlye Chu)
Justice of Appeal |
The applicant, unrepresented, appeared in person
[1] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[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 risk of torture as defined in Part VIIC of the Immigration Ordinance (Cap.115); the definition being the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[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 and its 1967 Protocol.