Subba Sosal v. Kevin Anthony Browne, The Adjudicator of the Torture Claims Appeal Board/ Non-refoulement Claims Petition

CACV 152/2019

[2019] HKCA 845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 152 OF 2019

(ON APPEAL FROM HCAL 1051 OF 2018)

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Before: Hon Yuen JA, Yau J and S T Poon JJ in Court

Date of Hearing: 30 July 2019

Date of Judgment: 6 August 2019

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J U D G M E N T

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

Introduction

1.1This is an appeal by Mr Subba Sosal (“the appellant”) from an order of DHCJ K.W. Lung (“the judge”) given on 15 March 2019 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)[1].

1.2The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 25 May 2018 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.The appellant is a national of India born in Sikkim now aged 32.  The appellant worked as a technician for around 6 to 7 years from around 2005 or 2006 to 2013.  He arrived in Hong Kong on 8 March 2015.  He overstayed and was arrested by the police on 27 July 2015.  After his arrest, he raised a claim for non-refoulement on 9 September 2015 and lodged a non-refoulement claim form dated 29 February 2016 with assistance from a duty lawyer. 

The appellant’s allegations

3.The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what he alleged was that:

-  in around 2008, he joined Sikkim Democratic Front (“SDF”) in his area as it had been the ruling party for the past 20 years;

-  he joined Sikkim Krantikari Morcha (“SKM”) in May 2014;

-  after the appellant joined SKM, he received verbal threats from the members of SDF.  He did not report these verbal threats to the police; 

-  SDF won the election in May 2014.  On 1 September 2014, he was attacked by 7 to 8 people and he recognized 2 of them, Umesh and Santosh, who were SDF people.  He claims to have been beaten, causing him to pass out for 3 days.  He was discharged from hospital after 5 to 6 days and stayed at home for about 3 months for recovery.  He had not followed up with the police as his father advised him not to do so;

-  from September to December 2014, the appellant encountered verbal death threats for about 3 to 4 times from the SDF people, Umesh, Santosh and others.  He had not reported these incidents to the police as he did not want to take any more risk after the attack;

-  the appellant went to stay with his friend in Kolkata for a short while.  His father advised him not to return home as the SDF members were continuing to search for him.  He left India using his Indian passport on 27 January 2015 and did not encounter any problems when passing through immigration;

-  his father told him that it was unsafe for him to return to India as SDF was more powerful and influential.  He claimed an SDF members, Ashish Rai (“Rai”) would harm him if he returned to India, but the appellant had never been harassed by Rai.

4.The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2“Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3“Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decision

6.The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director rejected the appellant’s claim for reasons set out in a decision given on 16 February 2017 in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk”.

The TCAB’s Decision

7.1The appellant then appealed to the TCAB which held a hearing at which the appellant was present and was assisted by an interpreter. 

7.2After examining his claim, the TCAB dismissed the appellant’s appeal for the reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, the TCAB found that the appellant had only been a low tier supporter of SDF.  Even on the appellant’s own case, many SDF members had left that party to join SKM, and he was unable to provide any convincing reason why he would be targeted by SDF members for joining SKM ([46]).  There was no evidence showing that the SDF party had any interest in the appellant.  He was assaulted only on one occasion even though there were many opportunities to harm him ([49]).  He failed to show that any treatment he would face would attain a minimum level of severity, or that there is a genuine and substantial risk of the alleged ill-treatment, or that there is any state acquiescence.  He failed to establish that he had a well-founded fear that he would be subjected to persecution upon returning to India.  The appellant was able to live in Kolkata and to leave his country without encountering any problems ([55]). 

Application for leave to start judicial review

8.1The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  On the date fixed for hearing (23 November 2018) he failed to attend and the judge dismissed his application.  Subsequently he asked for leave to appeal the dismissal out of time, and the judge in the exercise of his discretion set aside the dismissal and heard the application afresh.

8.2The appellant set out a number of grounds in his Notice of Application summarized by the judge in [20]:

(1)  his BOR2 risk was assessed without another screening;

(2)  he received the hearing bundle a few days before the hearing;

(3)  the contents of the bundle were in English and he was not provided with a translation;

(4)  he was confused at the hearing before the TCAB;

(5)  he was not legally represented at the hearing;

(6)  the TCAB had relied on hearsay material concerning COI information to find that he would be safe on repatriation.   

8.4However, his affirmation lacked particulars to support his alleged grounds.

The Judge’s Decision

9.1The appellant appeared at the hearing before the judge and was assisted by an interpreter.  In relation to ground (1) regarding the BOR 2 claim, the appellant alleged that the Immigration Department had written to him asking if he had any further information to add to his previous information, but had sent the letter to his old address (affirmation [17-19]).  Whilst this was not directly dealt with by the judge, it is apparent from the TCAB Decision that the appellant had not raised this point before the TCAB, nor had he suggested before the judge that he did in fact have relevant further information which might have impacted on his BOR 2 claim.  Therefore even assuming the appellant was right in saying he had not received the Immigration Department letter, there is no substance in this point in any event.

9.2In relation to grounds (2) - (4) regarding the Hearing Bundle, the judge noted:

“21. The applicant appeared before me. He confirmed that before the appeal hearing, he had a friend who helped him with the Hearing Bundle and the appeal. He understood the Hearing Bundle before the hearing and he had no difficulty throughout the hearing. He considered that he had had a fair hearing before the Adjudicator.”

So there is nothing in this point either.

9.3In relation to ground (5), the judge correctly applied the well-known authorities which held that appellants in the appellant’s position are not entitled to legal representation at all stages of the proceedings.  He had had the assistance of a lawyer in preparing his claims before the Director.

9.4In relation to ground (6), the appellant failed to identify any problem with the COI materials. 

Appeal to Court of Appeal

10.By a Notice of Appeal filed on 27 March 2019, the appellant appealed the judge’s order to this court.  He stated the following in his affirmation filed on the same date:

(1)  The [judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2)  The [judge] failed to provide detailed reasons in support of [his] decision.

Legal Principles

11.The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin (“Country of Origin Information”, or “COI”).  

11.2When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and I will not repeat them here.

11.3Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions which he did.

Discussion

13.Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

13.1The appellant does not make out his first ground of appeal as state acquiescence was not material to the TCAB’s Decision at all.  The main reason for TCAB’s dismissal of the appellant’s claim was because he was unable to provide any evidence why he would be targeted by SDF members for joining SKM given his low status in SDF, and in any event, there had been many opportunities to hurt him but no further assaults had occurred.  There was also his own evidence that he had encountered no problems in Kolkata and internal relocation was available.

13.2In relation to the second ground of appeal, the judge had set out the gist of his reasons, and it cannot be said that he had failed to provide detailed reasons.

14.We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.For the reasons set out above, this appeal must be dismissed.

The applicant, unrepresented, appeared in person