Re Rashpaul Chand

CACV 59/2019

[2019] HKCA 639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 59 OF 2019

(On appeal from HCAL 1006 of 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal by the abovenamed applicant, Mr RASHPAUL Chand, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 31 January 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 1 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 21 July 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of India now aged about 33, is the fear of being harmed or even killed by Pakistani terrorists.  Such alleged fear is said to arise out of the following circumstances:

(1)   He lived in Village Kalyana, District RS Pura, Jammu and Kashmir, which lies on the borders between India and Pakistan.

(2)   There had been a dispute between the 2 countries over the sovereignty of Jammu and Kashmir with exchanges of gunfire and fights since 1947.

(3)   Although the Indian government always dispatched the army to guard Jammu and Kashmir, Pakistani terrorists often attacked the place.  In particular, they would kidnap young Indian boys to train and brainwash them so as to use them in their fights against India.  If they resisted, the Pakistani terrorists would torture or even kill them.

(4)   In 2006, Pakistani terrorists twice attempted to abduct the applicant while he was with friends.  He managed to escape but some of his friends who were with him at the times were not so lucky and had disappeared.

(5)   In 2007, his elder brother was killed in a terror attack by Pakistani terrorists.

(6)   In around March or April 2012, about 4 to 5 Pakistani terrorists launched an attack while he was playing in a cricket match against the neighbouring village and caught 1 to 2 of the players from the neighbouring village.  However, the applicant escaped again.

(7)   The applicant never reported any of these incidents to the police or any other authorities in India.  He thought those were common situations already known to the authorities, which still failed to protect the people.

(8)   While in Hong Kong, the applicant maintained contacts with his parents who told him that the gunfire between India and Pakistan near their village continued.

Entry into Hong Kong and lodgment of NRF Claim

3.In fear of further danger if he continued to stay in India, at the suggestion of a friend who had been living in Hong Kong, the applicant decided to come to Hong Kong. He entered Hong Kong as a visitor on 30 September 2012 with permission to stay until 14 October 2012.  He overstayed since 15 October 2012.  He was arrested by the police on 27 February 2013.  He raised the NRF Claim by written representation on 3 March 2014, which was once withdrawn on 2 December 2014 and then re-opened on 8 December 2014[1]. He submitted a Non-refoulement Claim Form on 19 July 2017.

Director’s Decision

4.In processing the NRF Claim, the Director’s representatives conducted a screening interview on 19 July 2017 with the applicant who was represented by the Duty Lawyer Service.

5.The Director’s Decision covered all applicable grounds: torture risk[2], persecution risk[3], “BOR 3” risk[4] and “BOR 2” risk[5].  The NRF Claim was found to be not substantiated.

(1)   First, the risk of harm from Pakistani terrorists was assessed to be low.  The applicant had not been targeted personally in the past incidents.  Also, at 31 (which was his age when the Director processed the NRF Claim), he would not be a target of the Pakistani terrorists who picked only young Indian boys.

(2)   Second, despite the 3 attempts to abduct the applicant, the absence of ill-treatment from the Pakistani terrorists in the past is indicative of a small risk of future harm upon his return to India.  Though the attacks did cause some mental stress, it did not attain the minimum level of severity.

(3)   Third, the applicant’s behaviour was not consistent with that of a person facing imminent threat of death.  Despite the incidents in 2006 and his brother’s death in 2007, he did not decide to leave India until some 6 months after the third attempt to kidnap him in 2012.

(4)   Fourth, there is objective country of origin information (COI) showing that the Indian government has taken both national and international proactive measures to improve their effectiveness against terrorists.  There is no indication that the Indian government would not have followed up on the abduction incidents had the applicant reported them.  The availability of state protection would further lower or even negate the level of risk.

(5)   Fifth, the danger posed by the Pakistani terrorists was localised.  It could be lowered or negated by relocation.  Many reasonable internal relocation alternatives in a big country like India are available to an able-bodied adult like the applicant.

Appeal to Board and Board’s Decision

6.The applicant appealed to the Board.

7.The Board conducted a rehearing of the NRF Claim on 6 April 2018, at which the applicant confirmed the truth of the information given by him in the hearing bundle and initially co-operated with the Board and answered questions posed by the Board with the assistance of an interpreter.  However, according to [35] of the Board’s Decision, half way through the hearing, apparently, after it was pointed out to the applicant that he had given replies that were inconsistent with what he had previously said, the applicant suddenly refused to answer any more questions.  He persisted in such uncooperative stance despite having been warned that he had a duty to answer the questions put to him, without which the Board would be deprived of the opportunity to assess his credibility, which would adversely affect his claim.

8.The Board dismissed the applicant’s appeal on all applicable grounds.  The Board found the applicant’s evidence to be evasive, inconsistent and untruthful.  As stated above, the applicant refused to answer questions put by the Board when it was pointed out that his oral evidence at the appeal hearing was different from his statements to the Director.  The Board did not think he had told the truth especially about the core issues.  The Board was doubtful whether there had been the attempted abductions by Pakistani terrorists and did not believe that the applicant had a brother who was killed by terrorists.  

9.Further, even if the information/evidence given by the applicant had been found acceptable, the Board would still have dismissed the appeal on the grounds that any risk of harm would be negated or lowered by the availability of state protection based on objective COI showing positive and encouraging results from the national and international anti-terrorism measures taken by the Indian government and the availability of viable and reasonable internal relocation options.

Application for leave for judicial review and Judge’s Decision

10.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1006/2018 on 4 June 2018, the applicant sought leave to apply for judicial review of the Board’s Decision.  The Form 86 itself did not set out any ground on which the intended review was sought but, as summarised by the Judge at [12] ofthe Form CALL-1 dated 31 January 2019 ([2019] HKCFI 250) (“Form CALL-1”), by the supporting affirmation filed on the same date, the applicant relied upon the following grounds, only the last 3 of which were related to the Board’s Decision:

(1)   the Director failed to maintain high standard of fairness and his conduct was Wednesbury unreasonable;

(2)   the Director failed to consider the issue of state acquiescence;

(3)   the Director had not considered collusion between the police and the high ups of political circles and the misconduct of the police officials;

(4)   the Director failed to give sufficient weight to the COI which supported the applicant’s case;

(5)   the Director elected to adopt COI which suited his pre-conceived conclusion, which is unfair to the applicant;

(6)   the Director failed to appreciate that corruption and incompetency of the administration in the applicant’s country;

(7)   the Board failed to make sufficient enquiry before making the determination;

(8)   the Board was wrong to demand evidence from the applicant because the applicant was being kept in the detention center;

and

(9)   the Board failed to give sufficient chance to the applicant to arrange relevant evidence to support the claim.

10.The Judge’s reasons for refusing leave after an oral hearing can be found in [13]-[22] of the Form CALL-1 as follows:

“The Director’s Decision

13.   In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

14.   Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

15.   For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

16.   At the hearing before me, the applicant confirmed that he had no complaint against the Director, the interpreter or his own lawyer.  Nor did he have any complaint against the Adjudicator of the Board or the interpreter in the appeal hearing.  He was simply not happy with their Decisions.

17.   Grounds (1), (4), (5), (6) (7) are his opinion without any evidence to support.  These grounds fail.

18.   Ground (2) and ground (3) are irrelevant as the Adjudicator had found that there was no state involvement.  These grounds fail.

19.   As to ground (8), the Adjudicator was entitled to ask for proof from the applicant.  If he had any difficulty in getting the evidence, he should have told the Adjudicator for his decision.  He had not done so.  This ground fails.

20.   As to ground (9), this is non-point as the applicant had not said what evidence he wished to adduce.  It fails too.

21.   In the circumstances, he has failed to show that there is any reasonable prospect of success in his proposed judicial review.

CONCLUSION

22.   Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review.  Accordingly, I dismiss his application.”

Appeal to Court of Appeal and grounds of appeal

11.By a notice of appeal filed on 29 January 2019, the applicant appealed against the refusal of leave for judicial review on the following ground:

“I am not satisfied with the decision given by you because my life is not save (sic) in my country. Please help me to stay in Hong Kong until I have (sic) problem.”

12.The applicant filed written submission on 23 April 2019, which, after introducing himself, asserted as follows:

“I need your help so that i can save my life because my is in danger in my own country. i cant go back to my country at this moment. So i am sseking your kind favour over my application

I dont have enough sources to protect my self from them They still come to my place to locate me. iam fear if i return to my country i may tortured or killed by my enemies. I dont want to die. No one can help me there because almost everyone scared from them.

Police also working as they want. They can give bribe police and police give them permission to do any illigal work. They are using high level of protocol. Death in police custody are common fact and real culprits are very rare to bring justice. only strong people can survive there.

Please help me stay in Hong Kong until i have these problem iam fear if i return to my country i may tortured or killed.. because i don’t have enough sources to protect myself..

I hope you will understand my problem and will give m your kind favour sothat i can save my life.iam looking forwards your kind attention over my application.

Now i left hope only from you.Because at this moment i cant go back to my country. iam seeking protection from you from this danger.

I hope you will give me your kind favour and allow me to stay in Hong Kong until i have problem in my own country.i hope i will get your kind favour over my application.i will be greatful to you for your kindness towards me.”

13.The applicant appeared in person at the hearing of the appeal on 28 May 2019.  He had nothing to add to his grounds of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

14.The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

15.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

16.Neither the applicant’s notice of appeal nor written submission, as set out above, has put forward any valid ground of appeal, properly so called.  They did not say in what way the judge might have erred in law, failed to take into account a relevant matter or been otherwise plainly wrong. 

17.Nor can we see any.

18.Indeed, as the Judge held, the Director’s Decision was not amenable to judicial review because the proper challenge to the Director’s Decision was by way of appeal to the Board, which the applicant had exhausted. That being the case, the 1^st to 6^th grounds set out in the applicant’s affirmation in support of the Form 86, which criticised the Director, were not viable grounds for judicial review of the Board’s Decision.

19.As for the 7^th to 9^th grounds, apart from the reasons given by the Judge for rejecting them, with which we cannot find fault, we question whether it was open to the applicant to advance these grounds.  He was given the opportunity, but had declined, to present his evidence before the Board or assist in the Board’s enquiry into the NRF Claim by answering the Board’s questions.

Disposition

20.For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.  

The applicant, unrepresented, appeared in person