Re Saleath Raj Arul Jothi

CACV 381/2020

[2021] HKCA 354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 381 OF 2020

(ON APPEAL FROM HCAL 614/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.On 12 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 6 April 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 26 January 2017 rejecting the applicant’s non-refoulement claim.

2.On 17 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.The applicant is an Indian national.  He entered Hong Kong illegally on 4 March 2008 and was arrested by police on 6 March 2008.  The applicant lodged his non-refoulement claim on 21 March 2008.

4.The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by his wife’s family, as they disapproved of their marriage and blamed him for her death.  The factual background was succinctly summarized by the Judge at [2] – [6] of the Form CALL-1 ([2020] HKCFI 1918).

5.By a notice of decision dated 26 January 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. 

6.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 7 February 2018, during which the applicant gave evidence and answered questions from the Board.  The Board found the applicant’s account generally believable. However, the Board also found that the risk of harm is low due to the low intensity and frequency of past ill treatment and the passage of time (it had been more than 10 years since his wife’s death).  The Board also considered that adequate state protection was available and that internal relocation was viable.  The Board concluded that the conflict between the applicant and his wife’s family was purely a personal and private dispute.  Thus the Board dismissed the applicant’s appeal on 6 April 2018 on all the applicable grounds.

Decision of the court below

7.On 11 April 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  His grounds for judicial review, as stated in his affirmation in support, were that the Board was very unreasonable in making its decision based on web reports and some Indian authorities’ reports without considering sources relevant to his claim.

8.Upon consideration of documents only, on 12 August 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [15] of the Form CALL-1 ([2020] HKCFI 1918, HCAL 614/2018) as follows:

“ 12. On 11 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely asserted that he was not satisfied with the decision which was very unreasonable in that the Board merely relied on web reports and some Indian authorities reports without considering the source relevant to his claim in India but without providing any particulars or elaborations in support of his assertion. Nor did he request any oral hearing for his intended challenge. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

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 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, 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.”

Appeal to this Court

9.On 17 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His grounds of appeal stated in that document were:

(1)  there was a lack of legal representation for the BOR 2 risk assessment;

(2)  the Director and the Board did not determine his case fairly; and

(3)  there has been procedural unfairness throughout his case and that public policies of trying to dispose of non-refoulement claims as quickly as possible should be put aside.

10.This Court directed on 17 December 2020 that the applicant must lodge his written submissions on appeal by 14 January 2021, failing which the hearing date, fixed for 8 February 2021, would be vacated and the appeal would be processed on paper based on materials already lodged.  Notwithstanding so, the applicant failed to lodge any submissions as directed.  The hearing date was vacated and this appeal is processed on paper accordingly.

Legal principles

11.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  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

12.The applicant did not in his grounds of appeal provide any particulars in support and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot constitute effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

13.In particular, Grounds (2) and (3) about unfairness as set out above are bare assertions with nothing more and are devoid of merit.  Ground (1) is obviously misconceived because the applicant was legally represented before the Director when the Director considered and rejected his claim on all applicable grounds including BOR 2 risk.

14.In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its finding that the risk of harm is low.  The Board also considered that adequate state protection was available and that internal relocation was viable. Such findings are within the province of the Board and supported by cogent reasons.  The court will not interfere with such assessments unless they are reversible on public law grounds. 

15.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

16.For these reasons, this appeal is dismissed.

The applicant acting in person