Deepak Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petiton Office

CACV 328/2021

[2021] HKCA 1405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 328 OF 2021

(ON APPEAL FROM HCAL NO 2844 OF 2018)

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Before: Hon G Lam and Chow JJA in Court

Date of Judgment: 12 October 2021

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JUDGMENT

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Hon Chow JA (giving the judgment of the Court):

BACKGROUND

1.By notice of appeal dated 29 June 2021, the applicant appeals against the decision of Deputy High Court Judge To (the “Deputy Judge”) given on 17 June 2021 (the “Deputy Judge’s decision”).[1]

2.The Deputy Judge dismissed the applicant’s application for leave to apply for judicial review of the Torture Claims Appeal Board’s decision dated 19 November 2018 (the “Board’s decision”).  The Board’s decision affirmed the decision of the Director of Immigration refusing the applicant’s claim for non-refoulement in his Notice of Decision dated 13 March 2018 (the “Director’s decision”).

3.The applicant has consented to this appeal being disposed of on paper.

4.The applicant has not lodged any written submissions in support of this appeal.

THE APPLICANT’S NON-REFOULEMENT CLAIM

5.The applicant is an Indian national.  His claim is summarised by the Deputy Judge at [2] to [9] of the CALL-1 form.  In short, he claims that if returned to India, he would be harmed or killed by his uncle because of a land dispute.

THE DIRECTOR’S DECISION

6.The Director rejected the applicant’s non-refoulement claims on all applicable grounds, including torture risk[2], BOR 2 risk,[3] BOR 3 risk[4], and persecution risk[5].[6]

THE BOARD’S DECISION

7.The applicant appealed the Director’s decision to the Board.

8.The findings of the Board have been summarised by the Deputy Judge in his decision at [10] to [15], which it is not necessary to repeat here.

9.The Board rejected the applicant’s appeal.  The Board did not accept that the applicant was at any risk of harm of any kind from his uncle should he return to India, and found that the applicant failed to discharge his burden of proving his entitlement to non-refoulement protection.  The Board held that even if the applicant’s fear and risk were genuine, internal relocation was available to avoid that risk.  The Board was further satisfied that it was both reasonable and not unduly harsh for the applicant to reside in another part of India where he would not be at risk of harm from his uncle.

THE INTENDED JUDICIAL REVIEW

10.The applicant filed his Form 86 for leave to apply for judicial review.  In his supporting affirmation, he repeated his fears and his claims of his uncle’s threats to harm him.  He also expressed his disagreement with the Board’s decision.  However, his affirmation contained no criticism of procedural unfairness, unreasonableness and/or irrationality in the decision.[7]

11.In a letter from the Deputy Judge dated 18 May 2021, the applicant was invited to file any submission he would like to make in support of his application for leave to apply for judicial review.  The applicant only repeated his wish not to return to India because his life would be in danger.[8]

12.The Deputy Judge, at the hearing, attempted to ascertain from the applicant any possible basis for judicial review.  With regard to any issues relating to procedural unfairness, unreasonableness or irrationality in the Board’s decision, the applicant confirmed that “everything [was] perfect”.  The applicant’s complaint only related to the Board’s findings of fact.[9]

13.The Deputy Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review.  Leave to apply for judicial review was refused.[10]  The Deputy Judge’s reasons were set out at [19] and [20] of the Form CALL-1 as follows:[11]

“19.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

20.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of internal relocation. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.”

THIS APPEAL

14.On 29 June 2021, the applicant filed his notice of appeal.  His ground of appeal in his notice of appeal states, “The High Court refused my leave to apply for judicial review. But total judgment I did not find any good point to cancel my leave. His point is very weak. My points should read and change the judgment.”

OUR VIEW

15.In assessing the merit of the intended appeal, the court adopts the legal principles comprehensively set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the judge’s decision in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review.

17.It is incumbent on an applicant to point to errors made by the Deputy Judge with particularity.  The applicant has not done so.

18.The applicant has failed to raise any viable ground of appeal.

19.Consequently, we are of the view that the applicant’s appeal is without merit.  We see no basis to disturb the Deputy Judge’s decision. Accordingly, the appeal is dismissed.

The applicant, acting in person

[1] [2021] HKCFI 1737 (Form CALL-1).

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[6] [2021] HKCFI 1737 at [3].

[7] Ibid at [16].

[8] Ibid at [17].

[9] Ibid at [18].

[10] Ibid at [21].

[11] Ibid.