Re Jasmel Singh

CACV 350/2020

[2021] HKCA 93

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 350 OF 2020

(ON APPEAL FROM HCAL 1480 OF 2018)

________________________

________________________

Before:  Hon Au JA and G Lam J in Court

Date of Hearing:  19 January 2021

Date of Judgment: 27 January 2021

_________________

J U D G M E N T

_________________

Hon G Lam J (giving the Judgment of the Court):

1.This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 28 July 2020 refusing leave to apply for judicial review (“the Deputy Judge’s Decision”).[1] The intended judicial review is directed against the decision of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office (“the Board”) dated 20 July 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 14 December 2017 (“the Director’s Decision”) rejecting the applicant’s non‑refoulement claim.

2.By a letter dated 11 August 2020, the applicant gave consent for the appeal to be heard by a two‑member court.

A.  Background

3.The applicant is a national of India, born in 1989.  He entered Hong Kong illegally on 10 August 2015 and surrendered himself to the Immigration Department the next day.  He lodged a non‑refoulement claim on 15 March 2016.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s Decision, and paragraph 10 of the Board’s Decision.

4.The applicant claimed that he would be harmed or killed by one Amar Singh (“AS”), believed to be a member of the Punjab legislative assembly for the Indian Congress Party, and his son, Sukhwinder Singh (“SS”), due to a land dispute if refouled.  The applicant’s grandfather owned a piece of land which was mortgaged to AS.  After the grandfather had fully repaid the debt, AS refused to return the land.  AS also abducted his grandfather, forcibly obtained his fingerprints to sign the land‑related documents, and attacked him.  The report to the police was of no avail because of AS’s position.  Later, the applicant and his cousin encountered SS, who assaulted them and threatened to kill them.  The applicant then decided to take the land back.  He gathered around twelve men but SS had around forty people guarding the land.  In the fight, SS shot the applicant’s uncle and cousin to death.  The applicant fled to another village and heard from his family that his grandfather had survived a third attack. Subsequently, when he wanted to return home, he was hunted down by SS and suffered injuries.  Out of fear, he fled to Hong Kong for protection. 

B.  The Director’s Decision and the Board’s Decision

5.The Director assessed the BOR3 risk,^[2] the persecution risk,^[3] the torture risk^[4] and the BOR2 risk.^[5]  The Director did not accept that the applicant was a genuine non‑refoulement protection seeker and rejected his claim.

6.The applicant appealed to the Board.  A hearing was held on 12 July 2018, where the applicant was assisted by an interpreter.  The applicant adopted the information given in his claim form and in the interview with the Immigration Department, but chose not to answer questions from the Board even after it was indicated to him that there were queries about his claims and that if he chose not to address them it was unlikely the Board would reverse the Director’s Decision.  After considering the materials before it, the Board found that the information in the applicant’s non‑refoulement claim form lacked details, required explanation, or was implausible in relation to several key events (paragraph 31 of the Board’s Decision).  As a result, the Board was not satisfied of the credibility of the claims made by the applicant.  On this basis, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

C.  The Deputy Judge’s Decision

7.The applicant filed a Form 86 on 26 July 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review in his Form 86 were succinctly summarized by the Deputy Judge at paragraph 11 of the Deputy Judge’s Decision as follows:

“ 11. On 27 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director and the adjudicator reached their decisions wrongly as unfair and unreasonable;

(2) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence which led to an unfair outcome of rejecting the Applicant’s non‑refoulement claim;

(3) that the Director failed to take into account the argument that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(4) that the Director had failed to consider or to give sufficient weight to those COI which supported the Applicant’s aversions that the police in his home country would not be able to protect;

(5) that the Director instead referred to those COI which suited his pre‑conceived conclusion which was a clear case of unfair attitude which in itself is enough to render his decision void;

(6) that the Director failed to recognize the corruption and incompetency of the administration in the Applicant’s home country were still a very serious problem when various human rights organizations have compiled reports on the matter which stated testament to the Applicant’s assertions; and

(7) that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered as unreasonable in the scope of Public Law.”

8.After hearing the applicant on 13 December 2019 and considering the available documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 12‑16 of the Deputy Judge’s Decision:

“ 12. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way was state acquiescence relevant to his claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director fail to apply high standard of fairness in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

14. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. 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.

16. 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.”

D. This appeal

9.The applicant filed a Notice of Appeal on 11 August 2020 against the Deputy Judge’s Decision, stating as his ground of appeal that:

“ I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any transparency in these decision please accept my application and allow me to process further my case.” [sic]

10.The applicant filed his written submissions on 30 November 2020, in which he argued that the decisions were not transparent and that the situation in his home country was different from what the tribunals below had thought.  He said torture and deaths were common when innocent people were held in police custody there because the police were corrupt, and that if he returned he would be in danger.  In his submission, the Board’s Decision ignored many things related to his case.

11.Notice of the hearing of the appeal was sent to the applicant at the address he had given in his Notice of Appeal.  However, the applicant did not attend the hearing.  In his absence, we announced that the appeal would be determined on the basis of the written materials available.

E.  Discussion

12.The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14 and may be summarized as follows.

13.First, 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.  While the court in non‑refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board having regard to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risks of harm, state protection and viability of internal relocation are matters 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, procedural unfairness or irrationality in the decision of the Board.

14.Secondly, an appeal against the refusal of leave by a judge of the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and will only reverse that decision if an appellant can demonstrate that the judge has made errors of law or has failed to take into account relevant matters already placed before the court, or that his decision is otherwise plainly wrong.

15.Thirdly, in an appeal against refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward for reversing the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it were a fresh application for judicial review.

16.In light of the above, it is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing his application.

17.As mentioned earlier, the applicant did not in his Notice of Appeal or his written submissions identify any specific error in the Deputy Judge’s Decision.  There is simply no valid ground of appeal raised against the Deputy Judge’s Decision.  Nor is there any substantiated complaint with particulars against the Board’s Decision.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision, and can see no error of law or procedural impropriety in the processes below.  There is no basis to disturb the Deputy Judge’s Decision.

18.For these reasons, the appeal has no merit and is dismissed.

The Applicant, unrepresented, did not appear