Mitra Joy Kumar v. Toture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 546/2020

[2021] HKCA 860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 546 OF 2020

(ON APPEAL FROM HCAL NO 1898 OF 2018)

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Before:  Hon Lam VP, Yuen JA and Lok J in Court

Date of Hearing:  7 June 2021

Date of Judgment:  15 June 2021

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J U D G M E N T

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

Introduction

1.On 29 June 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to extend the time to apply for judicial review and dismissed the application for leave 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 17 April 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 25 January 2017 rejecting the applicant’s non-refoulement claim.

2.Following the order to grant the extension of time dated 29 September 2020, the applicant, on 8 October 2020, filed a Notice of Appeal against the Judge’s decision.

Background

3.The applicant is an Indian national.  He lodged a torture claim in Hong Kong on 17 June 2008, which he withdrew 8 September 2010 and was removed to India on 4 October 2010.  He came to Hong Kong again and lodged another torture claim on 12 May 2011, which was rejected on 11 August 2011 and from which he did not appeal, and was removed to India on 31 August 2012.  The applicant then entered Hong Kong unlawfully on 26 December 2015 and surrendered to the Immigration Department on 8 July 2016, and lodged his current non-refoulement claim the same day.

4.The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by members of the Communist Party of India (Marxist), by the Maobadi Dal (a Maoist terrorist group), or by politician Dola Sen.  The factual background was set out at paragraph 29 of the Board’s decision.

5.By notice of decision dated 25 January 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  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 and 9 November 2017, during which the applicant gave testimony.  The Board found that he is not a credible witness, due in large part to his limited knowledge of the political groups and elections that he claimed to have been involved in, as well as numerous inconsistencies in his evidence.  The applicant’s answers were wrong as to basic information such as the names of candidates and dates of elections he alleged to have been involved in.  The Board found that his case is not borne out by the evidence.

7.The inconsistencies in the applicant’s evidence as compared with his prior torture claims, as well as his failure to produce documentary evidence that he claimed he had or could produce, also weighed against his credibility.  As well, the Board noted that the applicant was evasive and self-contradictory in his answers during the Board hearing.  The Board’s very detailed assessment of the applicant’s evidence and credibility was set out at paragraphs 30 to 97 of the Board’s decision.

8.As a result, the Board rejected the applicant’s factual account in its entirety.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also considered that sufficient state protection was available and that internal relocation was viable.  Therefore, the Board dismissed the applicant’s appeal on 17 April 2018 on all the applicable grounds.

Decision of the court below

9.On 11 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his affirmation filed in support, the applicant stated that his life will be in danger if he is sent back to his country.  However, he did not specify any particular grounds for judicial review.

10.Following a hearing on 5 May 2020 at which the applicant appeared in person before the Judge, on 29 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [16] of the Form CALL-1 ([2020] HKCFI 1397, HCAL 1898/2018) as follows:

“14. He appeared before the Court and confirmed that the interview before the immigration officer and the Board were fair and he was free to give evidence. His lawyer had explained the Director’s Decision to him. He had no comments on the Board’s findings above.

15. There is no evidence to show that the Board erred in the finding of the facts or the application of the laws to his case.

16. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to this Court

11.On 8 October 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he will face hardship if he were to return to his home country, that the Board relied on news sources that are not officially recognized, or are simply hearsay, and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

12.Pursuant to the Court’s directions, the applicant lodged his written submissions on appeal on 3 March 2021 and 10 May 2021, with the latter incorporating the material from the former and also making additional arguments.  Those submissions mostly consist of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.  However, paragraph 5 of his submissions of 10 May 2021 states that the Board acted in a procedurally unfair manner by failing to properly assess his credibility.

13.The applicant did not provide any details or particulars in support of his grounds of appeal or as to how the Board failed to properly assess his credibility or as to any specific errors by the Judge.

Legal principles

14.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

15.As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal, 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 be 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.

16.As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse findings as to the applicant’s credibility and its rejection of the applicant’s entire factual account.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.

18.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.

19.For these reasons, this appeal is dismissed.