Re Gurvinder Singh

CACV 368/2020

[2021] HKCA 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 368 OF 2020

(ON APPEAL FROM HCAL 829 OF 2018)

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Before:  Hon Cheung, Chu and Au JJA in Court

Date of Written Submissions:  12 November 2020

Date of Judgment: 7 May 2021

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J U D G M E N T

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

1.This is the appeal by the applicant against the decision of Deputy High Court Judge CP Pang (“the Deputy Judge”) set out in the Form CALL‑1 dated 7 August 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1953.

2.The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 3 May 2018 (“the Board’s BOR2 Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 23 May 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3.The applicant filed his Notice of Appeal on 13 August 2020.  On the same date, he consented to this application to be disposed of on paper by this Court without an oral hearing.  This is our judgment.

A.      Background

4.The applicant is a national of India.  He first came to Hong Kong as a visitor on 30 April 2013 but later overstayed.  He was arrested on 27 July 2013.  On 4 March 2014, he lodged a non-refoulement claim.

5.The details of the applicant’s claim and his personal background were set out in paragraphs 13 - 26 of the Director’s decision of 15 January 2016 (“the Director’s First Decision”), and paragraphs 30 - 45 of the Board’s decision of 23 June 2017 (“the Board’s First Decision”).

6.The applicant claimed that he would be harmed or killed by his parental uncle and cousin who wanted to snatch his land which he inherited from his grandfather. He claimed that his uncle was a member of Shiromani Akali Dal Party (“SAD”). He was attacked twice by his uncle and cousin as they wanted to forcefully occupy the applicant’s land.  Out of fear, the applicant fled to Hong Kong for protection.

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

7.The Director assessed the BOR3 risk^[1], the persecution risk^[2], and the torture risk^[3] in the Director’s First Decision and the Director’s Second Decision covered the assessment on the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.The applicant appealed the Director’s First Decision to the Board.  A hearing for the appeal was held on 27 January 2017, during which the applicant chose not to give oral evidence before the Board.  Having considered the materials before it, 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.

9.The Board concluded that the applicant was not a credible witness because his conduct of immigration in Macau, India and Hong Kong was inconsistent with someone who feared for his life.  The Board found that his account was riddled with inconsistences.  He however chose not to give evidence and clarify such inconsistences and the Board found that he failed to prove his case (paragraphs 46 - 67 of the Board’s First Decision).  In any event, state protection and internal relocation were both available to the applicant (paragraphs 96 - 122 of the Board’s First Decision).  Thus, the Board dismissed his appeal.

10.On 21 August 2017, the applicant appealed the Director’s Second Decision to the Board.  The Board decided to determine this appeal on paper only as the applicant failed to submit any additional evidence.  By way of the Board’s BOR2 Decision, the Board found that, in light of the Board’s First Decision, the applicant’s appeal against the Director’s Second Decision also had no merits and thus dismissed his appeal.

C.      The Deputy Judge’s Decision

11.The applicant filed a Form 86 on 11 May 2018 seeking leave to apply for judicial review against the Board’s BOR2 Decision.  He did not request an oral hearing.  Nor did he advance any grounds of review in either his Form 86 or his supporting affirmation.

12.After considering the materials before him, the Deputy Judge dismissed the applicant’s leave application with reasons set out at [11] ‑ [16] of the Deputy Judge’s Decision:

“Discussion

11. 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. 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 due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12. As the Director’s decisions have been superseded by the Board’s decisions, they are not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decisions.

13. In the present case, the Board in fact rejected the applicant’s appeal/petition on the ground that it disbelieved the applicant and rejected his accounts of facts based on the major inconsistencies and contradictions in the applicant’s evidence. On the factual findings, there was no basis for the applicant’s fear. I also agree that his conduct by failing to claim for protection while in Macau and his conduct since arriving in Hong Kong was inconsistent with someone in genuine fear for his life and safety. In any event, the Board found that state protection was available and internal relocation was viable not being unduly harsh. As mentioned above, such assessment and findings are within the province of the Board and the Director. The Court will not interfere with the same unless they are reversible on public law grounds.

14. The grounds raised by the applicant did not pinpoint any procedural irregularity, unfairness or unreasonableness.

15. In the present case, the Board with the benefits of hearing the applicant’s oral evidence rejected the non-refoulement claim on its adverse finding on the applicant’s credibility for the thorough and detailed analysis and reasoning set out in its decision. It is obvious that the Board engaged in a joint endeavour with the applicant and considered all relevant criteria, gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately. I do not find any reasonably arguable basis to challenge the findings of the Board.

16. 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, irrational findings, or procedural unfairness in either of them. Nor do I find any failure to apply high standards of fairness on their part.”

D.      Grounds for appeal

13.The applicant’s ground of appeal in his Notice of Appeal was that:

“I would like to reject and review the decision made by Torture Claims Appeal Board on my non-refoulement case. They disregard my dangerous situation.” [sic]

14.Pursuant to the directions of Registrar of Civil Appeals dated 27 October 2020, the applicant filed his skeleton submissions on 12 November 2020.  In that, he effectively submitted that the Board wrongly assessed the country of origin information.  Other than that, he did not identify any errors in the Deputy Judge’s Decision.

E.      Discussion

15.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.  They can be summarized as follows.

16.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 due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.Second, an appeal against the refusal of leave by a judge in 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 we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s BOR2 Decision.

20.Bearing these principles in mind, we are of the view that this appeal has no merit.

21.The applicant’s aforesaid ground on the Board’s failure to assess the country of origin information was not advanced before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed at the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)]. This is not a viable ground.

22.In any event, there is no ground in the applicant’s Notice of Appeal or written submissions which shows any respect of errors in the Deputy Judge’s Decision. We have also reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.       Disposition

23.For all these reasons, we dismiss the appeal.

The applicant acting in person