Parminder Kumar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 164/2021

[2022] HKCA 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2021

(ON APPEAL FROM HCAL NO 1362 OF 2018)

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Before: Hon Yuen and Chu JJA in Court

Date of Written Submissions: 2 June 2021

Date of Judgment: 18 March 2022

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J U D G M E N T

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

Introduction

1.On 31 March 2021, DHCJ K.W. Lung (“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 4 July 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 26 October 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.On 14 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

3.The applicant is an Indian national.  He came to Hong Kong as a visitor on 26 December 2012.  He overstayed and was arrested by the Immigration Department on 26 November 2013.  On 4 January 2014, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by his creditor Lakhwinder (“L”), who is well-connected with the police in India, as he was unable to repay his loan to L.  The factual background of this case was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2021] HKCFI 820).

4.By a Notice of Decision dated 26 October 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

5.The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 14 June 2018.  By its decision dated 4 July 2018, the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out in [61] to [77], the Board found various inconsistencies and implausibility in the applicant’s evidence.  It was accepted that the applicant had taken out loans with L, and L had pressed him for repayment for which he suffered physical injuries on two occasions.  However, there was no evidence that L had attempted to kill him or to seriously harm him, and there was no evidence of state instigation or involvement.  Further, internal relocation is a reasonable and viable option [102].  For the aforesaid reasons, the Board rejected the applicant’s claim on all applicable grounds.

Decision of the court below

6.On 12 July 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, he said he could not go back to his home country at the moment as his life was not safe.  He urged the court to let him stay in Hong Kong until his problem is resolved.

7.The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  By his decision dated 31 March 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [16] of the Form CALL-1 as follows:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14. His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to this Court

8.On 14 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision on the following grounds:

“I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.”

9.In compliance with the Court’s directions of 26 May 2021, the applicant lodged his written submissions on 2 June 2021.  In his written submissions, he advanced the following:

(1)  His life will become worse if refouled and he was not satisfied with all the decisions made in his case.

(2)  The points in his case were ignored and the decisions were not transparent.  The situation of his country is different from what the decision-makers might think and it is hard for him to live and stand in front of his enemies.

(3)  Torture and deaths are common in police custody in India and the police would just give support to those who bribe them.

(4)  It is impossible for him to go back to work and even if he files a report to the police, the police would just inform those powerful people of the same.

(5)  It was impossible for him to go back to India at the present stage and he urged the court to understand his problem and let him stay in Hong Kong until his problem is solved.

(6)  His life would become worse if he were to return to his home country because of his enemies.

Legal principles

10.In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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 on appeal, which operates as a re-hearing, 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.  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

11.The applicant did not in his Notice of Appeal and written submissions provide any ground of appeal against the Judge’s decision or identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.

12.The grounds of appeal set out in the written submissions are vague and general assertions without particulars or elaboration, and they are thus not valid grounds of appeal: 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.The Board found that on the basis of his own story, he did not suffer any serious injuries during the incidents of attacks by L and his men, and there was no evidence suggesting L had any intention to kill him or to cause him serious bodily harm.  It was a private dispute without any state element, and in any event, the applicant may safely relocate to other big cities in India.  The Board was entitled to make the findings as it did and the Judge rightly found that there was no valid public law ground to intervene.

14.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

15.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person