CACV 587/2021
[2022] HKCA 731
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 587 OF 2021
(ON APPEAL FROM HCAL NO 2034 OF 2018)
________________________
| BETWEEN | | |
| | Harpreet Kaur | 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 Lisa Wong J in Court
Date of Hearing: 17 May 2022
Date of Judgment: 27 May 2022
____________________
J U D G M E N T
____________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 15 December 2021, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 24 December 2021.
2. The applicant is a national of India. She is 35 years old. She attempted to enter Hong Kong on 13 April 2015 and was refused permission to land. She lodged a non-refoulement claim on the same day. Her claim was made on the basis that she will be harmed or killed by her father and one Mr Singh (“KS”) who was a member of the Akali Party and a district head of Batala area because she refused to marry KS.
The decisions of the Director and the Board
3. By a Notice of Decision dated 25 June 2015, the Director rejected the applicant’s claim on torture risk[2], BOR 3 risk[3] and persecution risk[4].
4. Taking into account the absence or low intensity and frequency of past ill-treatment from the applicant’s father and KS, the Director assessed that the level of risk of harm from them is low. In particular, the Director noted that the applicant’s father did not attempt to fire his gun at the applicant again when she was lying on the floor. He just asked the applicant’s mother to stay away and left the house. The Director also noticed that after that particular incident, the applicant did not encounter any problems from her father and KS. Thus, the Director found that the applicant’s father and KS have no intention to cause serious harm to the applicant or to kill her. Besides, the Director found that the applicant’s problem is purely a private dispute and there is no evidence to show that the acts of her father and KS were initiated by or carried out with the consent or acquiescence of the Indian government. The Director further considered that the availability of state protection and internal relocation alternatives in India further lowers or negates the perceived risk.
5. The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 24 August 2015. The Board found that the evidence did not indicate that the injuries sustained by the applicant were serious. The Board further held that the evidence did not show that the Indian state was unable or unwilling to protect the applicant against ill-treatment for a Convention reason. The Board also considered there is no involvement of the interest and/or policies of the Indian government in the applicant’s case. In addition, the Board considered it reasonable for the applicant to relocate to Delhi where there is no appreciable risk of the feared persecution. Therefore, the Board rejected the appeal on 2 September 2015.
6. The applicant did not at any time seek leave to apply for judicial review against the decision of the Board made on 2 September 2015.
7. By a Notice of Further Decision dated 14 March 2017, the Director rejected the applicant’s claim on BOR 2 risk[5] in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim.
8. On 27 April 2017, the Board received the applicant’s notice of appeal against the Director’s further decision, which was submitted out of time. The Board rejected the late filing of the notice of appeal on 20 September 2018 (“the Board’s second decision”) as the applicant has failed to provide any good reason for the delay and found there is no real danger that if refouled the applicant would be killed in her home country in ways or circumstances that would violate BOR 2.
The intended judicial review
9. The applicant filed a Form 86 and an affirmation on 26 September 2018 to seek leave to apply for judicial review against the Board’s second decision[6]. She stated in her affirmation that she disagreed with the decision, her problem is not solved and she wants to reopen her case.
The judge’s decision
10. DHCJ Lung considered the application on paper as the applicant did not request for an oral hearing. The judge found that the Board had considered all the circumstances of the applicant’s case and is entitled to make the decision as it did. The judge also held there is no error of law or procedural unfairness in the Board’s second decision. Thus, the judge concluded that there is no realistic prospect of success in her intended judicial review and dismissed the leave application on 15 December 2021.
Grounds of appeal
11. The applicant stated the following grounds of appeal in the Notice of Appeal filed on 24 December 2021:
(1) The applicant will face hardship if she returns to her home country.
(2) The Board had significantly relied on source of news which is not officially recognised or is simply hearsay. It had also relied on cases which are outdated considering the drastic changes. The lack of credible sources of information has resulted in the Board making groundless speculations.
12. In her written submissions, the applicant further submitted that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and that the Board acted in a procedurally unfair manner without properly assessing her credibility.
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 scrutinising 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.
15. 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
16. The applicant’s submissions against the Board were not raised in her previous leave application. An appeal is not an occasion for an applicant to introduce new grounds[7]. In any event, her complaint against the Board is just bare assertion without particulars or evidence in support. In particular, the applicant has not adduced any evidence to refute the Board’s findings. Furthermore, she has not put forward any reasonably arguable ground to show that the judge was wrong in refusing to grant leave for her to bring judicial review against the Board’s second decision. The applicant failed to show 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.
17. As there is no merit in the grounds and contentions raised on appeal, we dismiss this appeal accordingly.
(Susan Kwan)
Vice President | (Lisa Wong)
Judge of the Court of
First Instance |
The Applicant (Appellant), acting in person
[1] [2021] HKCFI 3693
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] This refers to 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 and its 1967 Protocol.
[5] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[6] Although the proposed respondent in Form 86 is the Director and the Notice of Further Decision was stated in Form 86, the date of the relevant decision was stated as 21 September 2018, whereas the actual date of the Board’s decision was 20 September 2018. The judge directed that Form 86 be amended such that the Board is the proposed respondent, the Director is the interested party and the date of the decision 20 September 2018.
[7] Re Qadir Sher[2018] HKCA 160 at §11