Re Palaru Bharathiraja

CACV 237/2021

[2021] HKCA 1768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 237 OF 2021

(ON APPEAL FROM HCAL 1399 OF 2018)

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Before:  Hon Cheung JA and Lisa Wong J in Court

Date of Judgment:  30 November 2021

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”)  on 30 April 2021 (“Judge’s Decision”)  refusing to grant leave for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”)  given on 29 September 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”)  of his non-refoulement claim (“NRF Claim”)  on 20 September 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of India, is a fear of being harmed or even killed by a person called “Ram” due to a dispute originated from a caste conflict.

3.The circumstances allegedly giving rise to such fear were set out in detail in paragraph 7 of the Director’s Decision and paragraphs 5 to 25 of the Board’s Decision and in gist in [2] to [4] of the Judge’s Decision in the Form CALL-1 [2021] HKCFI 1196 (“Form CALL-1”).  Briefly:

(1)  The applicant is of the Yadavar caste.

(2)  The applicant hanged out with Ram, who is of the Pallar caste and whose family is rich and powerful with connections with a political party.

(3)  In July 2014, they fought because Ram spoke ill of the Yadava spiritual leader.  The fight between the 2 young men escalated to a scuffle involving people from the 2 castes.

(4)  A complaint to the Ervady Police Station only resulted in a Pallar officer’s advice to settle the dispute themselves.

(5)  Thereafter, the applicant kept on receiving threatening phone calls from Ram and other Pallar people.  About a week later, Ram and 10 other Pallars broke into the applicant’s house to assault him and his father.

(6)  The applicant’s father sent him to another village, Sevoor, to hide.  The Paramakudi Police Station refused to take the applicant’s complaint after an officer spoke to Ram’s father.

(7)  About 10 days later, Ram and his people went to Sevoor to look for the applicant, who had been alerted and managed to escape to Coimbatore where he stayed at a place called Ukkadam.

(8)  Whilst the applicant was in Ukkadam, Pallar people went to his home twice to beat up his father to extract his whereabouts.

(9)  Ram and his people eventually located the applicant in Ukkadam 3 months later.  They assaulted the applicant and the friend who took him in.  Ram stopped and left only upon the intervention of neighbours.

(10)  Thereafter, Ram and his people continued to harass the applicant’s father, threatening to kill the applicant wherever he was.

(11)  The applicant left India in haste, after hearing from people of his village that Ram would be coming for him in Coimbatore.

Overstay in Hong Kong and lodgment of NRF Claim

4.The applicant arrived in Hong Kong on 1 December 2014 as a visitor with permission to stay until 4 December 2014.  He overstayed and was arrested on 5 December 2014.  He raised the NRF Claim by written representation dated 10 January 2015 and submitted a Non-Refoulement Claim Form (“NCF”)  on 24 August 2017.

Director’s Decision

5.After considering the information provided by the applicant in the NCF and at the screening interview on 13 September 2017, the Director found the NRF Claim unsubstantiated for torture risk[1], persecution risk[2], “BOR 2” risk[3] or “BOR 3” risk[4].

Appeal to Board and Board’s Decision

6.The applicant appealed to the Board.  The Board conducted a rehearing on 22 March 2018, at which the applicant gave evidence and answered the Board’s questions through an interpreter.

7.While accepting the applicant’s version of events[5], the Board dismissed the appeal on all 4 grounds for non-refoulement protection.  It reasoned that (1) the dispute between the applicant and Ram was of a private nature thereby failing the 3^rd limb of the definition of torture; (2) there is no real risk that the applicant would be located by Ram amongst a population of over 1 billion people in India; (3) Ram wanted to hurt the applicant for personal reasons rather than for a Convention reason; and (4) the applicant has not been charged with any criminal offence and would not be subject to risk of life.

Application for leave for judicial review and Judge’s Decision

8.By the Form 86 issued under HCAL 1339/2018 on 29 November 2018, the applicant applied for judicial review of the Board’s Decision, without stating any proposed ground.  The supporting affirmation merely expressed the applicant’s wish to stay in Hong Kong as his problem in India was still not solved. It also stated that the applicant could submit supporting documents in the further processing of his claim.

9.The applicant did not ask for a hearing.  The Judge refused leave on paper for the reasons set out in [9] to [13] of the Form CALL-1:

“9. On 16 July 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 repeated his claim that his life would be in danger if returned to India but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality r procedural unfairness n 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 his intended challenge.

10. 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.

11. 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 parts 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.

12. 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.

13. 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.”

Appeal to Court of Appeal - grounds of appeal & failure to file submission

10.By the notice of appeal filed herein on 12 May 2021, the applicant appealed against the Judge’s Decision.  The applicant stated 5 grounds of appeal but only the second one concerned the Judge’s Decision[6], which was that the Judge failed to take his argument into account before reaching his decision.

11.In breach of paragraph 3(1)  of the directions given by the Registrar of Civil Appeals on 10 September 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 5 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

12.The hearing date on 16 November 2021 was therefore vacated, leaving us to deal with the appeal on paper on the material filed with the court.

Discussion

13.In view of the way in which the applicant conducted the proceedings before the Judge and before this court, this appeal can be disposed of shortly.

14.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 allegedly giving rise to the claim, the risk of harm, the availability of state protection and the viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

15.The applicant did not in the Form 86 or the supporting affirmation point to any error of law, procedural unfairness or irrationality in the Board’s Decision.  The application for judicial review of the Board’s Decision was hopeless and leave was rightly refused.

16.Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)  & (4)].

17.The applicant did not in the notice of appeal identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.  The alleged failure by the Judge to take into account the applicant’s argument is too vague to warrant any serious consideration.  Not only is it not a proper ground of appeal, it makes no sense in the present case as the applicant did not advance any argument at all before the Judge.

18.In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

19.For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.

The applicant was unrepresented and absent