Re Sonu Kumar

CACV 437/2019

[2020] HKCA 294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2019

(ON APPEAL FROM HCAL 39/2018)

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Before:  Hon Barma JA, Barnes and Lisa Wong JJ in Court

Date of Hearing:  21 April 2020

Date of Judgment:  7 May 2020

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J U D G M E N T

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Hon Barnes J (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (the Judge) given on 10 September 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 22 December 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 20 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of India.  He entered Hong Kong on 11 December 2015 as a visitor and was permitted to remain until 17 December 2015.  He overstayed and later surrendered to the authorities.  He lodged a non-refoulement claim on 30 March 2017. 

3.The applicant’s claim was based on threats from a moneylender known as AK.  The details of the applicant’s claim have been summarised by the Judge at [2] to [9] of the CALL-1 Form.

4.By a Notice of Decision dated 20 September 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 13 December 2017, the Board dismissed the appeal on 22 December 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.At [76] of the Board’s Decision, the Board found that the applicant was neither credible nor reliable. The Board was also satisfied at [43] that there is nothing to suggest that state protection will not be available to the applicant.  (Note: at [101] the Board did not find it necessary to consider internal relocation).

The Judge’s decision

7.The applicant filed a Form 86 on 8 January 2018 which contained no ground for seeking relief.

8.In his affirmation in support of the leave application dated 8 January 2018, the applicant deposed as follows:

“Currently I am detain in Castle Peak Bay Immigration Centre from long time. I don’t want to go back my country because my problem is not finish yet. I don’t want to get killed by other party in India. So in my hearty respect to you please look into matter and help me. I am really thankful to you for this act of kindness.” [sic]

9.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [15] to [19] of the CALL-1 form:

“15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

16.  In the present case the applicant’s claim was rejected by the Board after making adverse findings against his credibility for the detailed analysis and reasons as set out in paragraphs 36 – 85 of the decision, of which the Board was entitled to do on the basis of the evidence and materials available before it, and in the absence of any legal error or procedural unfairness being demonstrated by the applicant, I do not find any reasonably arguable grounds for his intended challenge.

17.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision subsequently confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

10.In the Notice of Appeal dated 19 September 2019 the applicant contended that:

“I am requested to Honourable Court my life is danger’s that’s why I cannot go back to India. I am requesting to court please save my life. I want also inform to court [the judge] without my appearance cancel (Rejected) my claim in Hong Kong” [sic]

11.In his affirmation of the same day filed in support of the appeal, the applicant exhibited the CALL-1 form.

12.In his skeleton submissions dated 9 April 2019, the applicant submitted that the Board failed to meet the high standard of fairness required when its decision had significant implications to his right not to be subjected to torture; that the Board acted in a procedurally unfair manner in that it failed to properly assess his credibility; and that the Board’s Decision was unreasonable.

13.We heard the appeal on 21 April 2020.

14.The applicant did not have anything to add to his written submissions.  On his reference that the Judge rejected his claim without a hearing, the applicant was asked what arguments he would have advanced before the Judge.  The applicant said he was not given sufficient time to prepare relevant documents to support his claim, adding that those documents were, and still are, in India.  

Discussion

15.The grounds of appeal advanced in the submission did not identify any error on the part of the Judge.  The applicant’s complaints were directed at the Board’s Decision.  When refusing to grant the applicant leave to apply for judicial review, the Judge referred to the adverse findings by the Board and re-iterated that judicial review does not operate as a rehearing of the non-refoulement claim.  The bare assertion by the applicant in the Notice of Appeal that it is unsafe for him to return to India is not itself a valid ground for seeking leave for judicial review or a valid ground of appeal.  In any event, the Board has rejected his claim for protection because of the lack of credibility and we can see no public law error in the Board’s Decision.

16.There was no hearing before the Judge because the applicant had not requested for one (Rules of High Court Order 53 rule 3(3)).  The applicant did not identify what argument he wished to have made in the hearing before the Judge in the documents submitted. Before us, all he said was that he was not given enough time to obtain documents which are still in India. In our view, it cannot be said that the applicant suffered any real prejudice from the absence of a hearing before the Judge.

17.We have reviewed the Judge’s decision and the reasons he gave for rejecting the applicant’s application for leave to apply for judicial review.  We agree with the Judge’s observations that the applicant’s intended judicial review has no prospect of success.  There is no basis to interfere with the Judge’s decision. 

18.For the above reasons, we are of the view that the appeal has no merit and accordingly we dismiss the appeal.

The applicant acting in person