Re Salwant Singh

CACV 164/2019

[2019] HKCA 805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2019

(ON APPEAL FROM HCAL 773/2017)

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JUDGMENT

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Hon Lam Acting CJHC (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Josiah Lam on 19 March 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.The applicant is a national of India.  He arrived in Hong Kong on 25 June 2016 and was permitted to remain as a visitor for 14 days.  He overstayed here since 10 July 2016 upon the expiry of that permission.  He surrendered to the Immigration Department on 13 July 2016.  He lodged a claim for non-refoulement protection on 20 July 2016.

3.The applicant’s claim was based on the fear that, if refouled, he would be harmed, or even be killed, by his parents, who were believers in Sikhism, because he intended to marry a Christian.  The background facts of this case were summarized by the judge in [1] – [12] of the Form CALL‑1 ([2019] HKCFI 684).

4.By a notice of decision dated 28 December 2016[1], the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[2] and the BOR 3 risk[3]), the persecution risk[4], and the torture risk[5].

5.The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 6 September 2017, and the Board dismissed the appeal/petition on 22 September 2017¹.  In its decision, the Board noted that the applicant’s claim was based on bare assertions without evidence in support.  He was evasive when he was asked about the political aspects of his claim.  The Board considered that his fear of harm by his parents because of religious reasons was not well-founded.  There was no credible evidence that his parents wanted to kill or harm him.  The Board did not accept that the applicant’s father was as politically influential as the applicant claimed.  There was no reliable evidence that the applicant had suffered physical or mental injuries of requisite severity.  Nor was there any reliable evidence indicating either the unavailability of state protection or the involvement of the state. 

The judge’s decision

6.The applicant filed his Form 86 on 17 October 2017, seeking leave to apply for judicial review against the Director’s and the Board’s decisions.  He set out the grounds for seeking relief in his affirmation filed on the same day in support of the application. The grounds were summarized by the judge at [24] of the Form CALL-1. 

7.An oral hearing was held on 10 August 2018. 

8.At [18] of the Form CALL-1, applying the decision of this Court in Re Moshsin Ali [2018] HKCA 549, the judge held that the applicant could not seek leave for judicial review against the Director’s decision.

9.As mentioned earlier, the judge refused to grant leave to apply for judicial review.  His reasons in refusing leave were set out in [29] – [35] of the Form CALL-1 as follows:

“ 29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

30. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –

‘ 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 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.’ [7]

31. The Applicant complained he was not given opportunity to prove his case. He alleged there were police reports to be obtained from India for that purpose.

32. According to the Applicant, he was in custody in September 2017 when the Board hearing took place. Even so, he could have written to his relatives for help to get the documents if those documents existed at all. The Applicant did not. He excused that he did not want his enemies to find out his situation. I find such explanation unreasonable.

33. The Applicant did not have the alleged documents even now. His talk of the said documentary proof should be dismissed as vague talk. There was no evidence he had raised that to the Adjudicator or he had applied for adjournment in the Board hearing for cause. The Applicant failed to prove he had been deprived of any chance to prove his case before the Director or the Adjudicator.

34. The Adjudicator’s report showed the Adjudicator made detailed inquiry of the Applicant's claim. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. She considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

35. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

The appeal

10.On 2 April 2019, the applicant filed a notice of appeal.  In it, the applicant advanced the following grounds of appeal:

“ I am not satisfied with the decision because I have problem in my own country. Please help me to stay in Hong Kong until I have problem.” (sic)

11.The applicant lodged his written submission on 14 June 2019.  The applicant submitted that,

(a)   He was not satisfied with the decision of the Board because it was unfair.  The Board ignored his problem.

(b)   The police were corrupt, and death in the police custody was common.

(c)   He could not go back to his own country because his enemies had strong political influence and were still looking for him.

12.By a letter dated 2 April 2019, the applicant gave consent to this appeal being heard by a 2-member court.

13.Notwithstanding notice of hearing duly given, the applicant failed to turn up for the hearing on 15 July 2019.  We proceed to process the appeal on the basis of written materials lodged by the applicant.

General principles

14.Before we address the merits of this appeal, we would highlight some general propositions that this Court has adopted in determining an appeal for non-refoulement cases.  

(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 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 (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.

(2)   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.  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

15.In the present case, the Board rejected the applicant’s claim on the ground that it was not satisfied that the applicant would face a real risk of harm if refouled.  As correctly pointed out by the judge at [30] of the Form CALL-1, assessment of risk of harm is within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on public law grounds.  After rigorous examination and anxious scrutiny of the Board’s decision, the judge found no realistic prospect of success to challenge the findings of the Board in the intended judicial review.

16.In this appeal, the applicant asked this Court to reassess his case afresh.  As explained above, this is not a permissible course.

17.In our view, nothing stated by the applicant in the notice of appeal or in his written submission constitutes a valid ground of appeal.

18.Having reviewed the materials before us, we cannot see any error on the part of the judge.  We agree with the judge that leave to apply for judicial review should be refused.

19.For these reasons, we dismiss the appeal.

The applicant acting in person, absent