RE MITHUN KUMAR

CACV 273/2021

[2022] HKCA 902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2021

(ON APPEAL FROM HCAL NO 984 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 2 November 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Lisa Wong J)  judgment of 20 October 2021 (“the Judgment”)  ([2021] HKCA 1537). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 20 May 2021 refusing the applicant’s application for leave to apply for judicial review ([2021] HKCFI 1423).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  In his Notice of Motion, the applicant alleged that his life would still be in danger and that he would face hardship in his own country and that the Court failed to consider all applicable grounds of his non-refoulement claim.

5.  The applicant lodged his written submissions on 15 November 2021.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  It is however noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

6.  In our view, the applicant’s intended appeal has no merit at all.  None of the matters raised in his Notice of Motion has identified any specific error in the Judgment.  General assertions of his fear to return to his home country simply do not constitute viable grounds of appeal.  The matters raised in his Notice of Motion are all general and bare allegations unsupported by specific particulars or evidence.  Clearly, they do not constitute proper grounds of appeal.

7.  Moreover, none of the arguments raised in his written submissions were argued before the Deputy Judge or before this Court in his earlier reapplication for extension of time to appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay[2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh[2021] HKCA 870 at [7].  In any event, the applicant’s new arguments are all general and bare assertions unsupported by particulars.  He has also failed to show how the legal propositions as stated in his written submissions relate to his case.  More importantly, none of his submissions has identified any error in the Judgment.  As such, they are not viable grounds of appeal.

8.  The applicant’s contentions are also fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has also failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the application for leave to appeal to the Court of Final Appeal is refused and the Notice of Motion filed on 2 November 2021 dismissed.

The applicant acting in person

CACV 273/2021

[2021] HKCA 1537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2021

(ON APPEAL FROM HCAL NO 984 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 20 May 2021 refusing him leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 1423.

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 4 April 2018 (“the Board’s Decision”) dismissing the appeal against the decision of the Director of Immigration (“the Director”) dated 10 October 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of India. He entered Hong Kong illegally in June 2014 and was arrested by the police on 18 June 2014. He lodged a non-refoulement claim on 20 October 2014. His claim was raised on the basis that he would be harmed or killed by the head of his home village over a land dispute in India upon refoulement. The factual details of the applicants’ claim were summarised by the Deputy Judge at [2] - [3] of the Leave Decision.

4.  By a Notice of Decision dated 10 October 2017, the Director assessed the applicant’s claim on all applicable grounds including the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3], and the BOR2 risk^[4] and determined it against him. Taking into account all relevant circumstances, the Director assessed the risk of harm from the village head and his men upon his return to India as low. The Director considered that state protection would be available to the applicant and, on the basis of the Country of Origin Information (“COI”), that internal relocation alternatives would be available and reasonable.

5.  On 16 October 2017, the applicant appealed against the Director’s Decision to the Board. He attended a hearing before the Board on 23 March 2018 and gave evidence. The Board dismissed his appeal on 4 April 2018. The Board found the applicant’s claim unreliable in the absence of any reliable evidence in support of his bare assertions, and in any event, internal relocation would be viable.

The Leave Decision

6.  On 31 May 2018, the applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review against the Board’s Decision. The Deputy Judge heard the applicant on 2 March 2021. By the Leave Decision, the Deputy Judge refused the application to grant to the applicant leave to apply for judicial review and held that:

“9. On 31 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Board, I do not find any reasonably arguable basis for his intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. 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.

13. 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.”

The Appeal

7.  On 24 May 2021, the applicant filed his Notice of Appeal against the Leave Decision which did not contain any properly proposed grounds of appeal. Pursuant to the directions of the Registrar of Civil Appeals dated 15 July 2021, he filed a Supplementary Notice of Appeal on 20 July 2021. In it, he simply asserted that the Deputy Judge did not consider his argument and only believed the Board Decision which was totally based on COI materials and not the same with practical life.

8.  In his written submissions lodged on 16 August 2021, the applicant did not raise any grounds of appeal with any particulars to show how the Deputy Judge erred in the Leave Decision.

9.  The appeal hearing took place on 12 October 2021 before us, during which the applicant confirmed he had nothing further to add to the written materials. He only repeated he could not go back to India at the moment since there were a lot of problems.

Discussion

10.  The relevant legal principles governing the appeal in non-refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

11.  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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

12.  In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with sufficient particulars and specifics.

13.  The applicant had not in his Notice of Appeal, Supplementary Notice of Appeal or written submissions identified any errors committed by the Deputy Judge with sufficient particulars and specifics. As no viable ground of appeal to challenge the Leave Decision had been raised by the applicant, this appeal is bound to fail.

14.  In any event, having considered the materials before us, we have reviewed both the Board’s Decision and the Leave 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. There is no basis to disturb the Leave Decision.

15.  For the reasons given above, the applicant’s appeal has no merits. Accordingly, we dismiss the appeal.

The applicant acting in person