CACV 30/2022
[2022] HKCA 534
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 30 OF 2022
(ON APPEAL FROM HCAL 2614 OF 2021)
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| BETWEEN | | |
| | ROY SANGYA | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative Respondent |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
_____________________
Before: Hon Chow JA and Wong J in Court
Date of Hearing: 19 April 2022
Date of Judgment: 17 May 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“the Judge”) on 7 January 2022 refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review is against the second decision of the Torture Claims Appeal Board (“the Board”) dated 15 November 2018, whereby the Board dismissed the Applicant’s appeal against the further decision of the Director of Immigration (“the Director”) dated 24 April 2017 rejecting the Applicant’s non-refoulement claim.
BACKGROUND
2. The Applicant is a national of India. He arrived in Hong Kong on 12 September 2009 as a visitor. He did not depart from Hong Kong after the expiry of his limit of stay, and overstayed. He was arrested by the police on 6 October 2009, and later lodged a torture claim with the Immigration Department.
3. The Applicant claimed that if refouled to India, there was a risk that he would be harmed or killed by his wife’s family because of his religious faith. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.
4. By a Notice of Decision dated 6 February 2015, the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: torture risk[1], BOR 3 risk[2], and persecution risk[3].
5. The Applicant appealed the Director’s decision to the Board. On 10 March 2017, the Board dismissed the Applicant’s appeal and confirmed the decision of the Director.
6. On 7 April 2017, the Director on his own initiative invited the Applicant to submit additional facts which might be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including BOR 2 risk[4]. In the absence of any response, the Director by a Notice of Further Decision dated 24 April 2017 rejected the Applicant’s non-refoulement based on BOR 2 risk (“the Director’s Further Decision”).
7. On 8 May 2017, the Applicant appealed the Director’s Further Decision to the Board. On 15 November 2018, the Board dismissed his appeal (“the Board’s Decision”). The Board observed that the Applicant provided no further or additional information for his BOR 2 claim other than regurgitating his claim as before, and also that state/police protection and reasonable internal relocation were available to the Applicant. The Board concluded that the Applicant’s claim for non-refoulement based on BOR 2 risk failed.
THE JUDGE’S DECISION
8. On 20 November 2018, the Applicant filed a Form 86 and supporting affidavit seeking leave to apply for judicial review of “the decision made by the Immigration Department on my case on 15/11/2018”, which was correctly treated by the Judge as being a reference to the Board’s Decision (see Form CALL-1 at §12).
9. In his decision dated 7 January 2022, the Judge observed that the Applicant did not provide any grounds for seeking relief in his Form 86, and in his supporting affidavit of the same date he just stated that he rejected the decision made by the “Immigration Department” because they disregarded his dangerous situation. The Applicant was unable to put forth any proper ground for his intended challenge at the hearing of his application.
10. The Judge, having considered the Director’s Further Decision and the Board’s Decision with rigorous examination and anxious scrutiny, did not find any error of law or procedural unfairness in their decisions nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim (see Form CALL-1 at §16). The Judge was not satisfied that there was any realistic prospect of success in the Applicant’s intended application for judicial review. Accordingly, the Judge refused the Applicant’s leave application.
THIS APPEAL
11. In his Notice of Appeal filed on 13 January 2022, the Applicant requested for an Order “to reject and review the court’s decision”. The Applicant stated that he was still at risk of being tortured by his previous wife’s family and that he now had a son born in Hong Kong with autism.
12. In his 4-page written submissions dated 15 March 2022, the Applicant complained that he was not informed of what he should do regarding the whole issue as he was a foreigner (§1), and stated that there were various problems in his home country, and the possibility of relocation was a myth (§§2-4).
13. At the hearing on 19 April 2022, the Applicant had nothing to add in support of his appeal.
DISCUSSION
14. 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)).
15. The Applicant has not pointed to any specific errors in the Judge’s decision dated 7 January 2022, or raised any viable grounds of appeal against the Judge’s decision in his Notice of Appeal, or in his written or oral submissions.
16. The mere repetition by the Applicant of the basis of his non-refoulement claim is not a valid ground of appeal. It is well established that the 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 (see Re Kartini[2019] HKCA 1022). The court in an application for judicial review in non-refoulement cases will not reassess the Board’s findings of fact unless the applicant can show illegality, procedural unfairness, or irrationality in the Board’s Decision. No such illegality, procedural unfairness, or irrationality has been shown in the present case.
17. The Applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal | (Albert Wong)
Judge of the Court of
First Instance |
The Applicant, unrepresented, 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 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 risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.