JAGJEET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 580/2020

[2021] HKCA 642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 580 OF 2020

(ON APPEAL FROM HCAL NO 965 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  The applicant lodged a Notice of Appeal on 27 October 2020 against the decision of Deputy High Court Judge C P Pang dated 15 October 2020[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of India.  He is 30 years old.  He came to Hong Kong to seek non-refoulement protection on 21 April 2015.  His claim was made on the basis that if he returns to India he will be killed by the people of Shiromani Akali Dal (“SAD”) because he refused to join SAD and he also fears that he will be arrested as he was falsely accused of being connected with a murder case. 

3.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal.  On 14 January 2021, the Registrar of Civil Appeals directed that the applicant should lodge written submissions on or before 4 February 2021 and that the appeal shall be determined by the Court of Appeal on paper without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant did not lodge any written submission as directed.  As the time for compliance with the said directions has expired, it is appropriate that the Court of Appeal should consider this application on paper.

The Director’s decisions

4.  By a Notice of Decision dated 10 August 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on the grounds including torture risk[2], BOR 3 risk[3] and persecution risk[4]. 

5.  Having regard to the mode of the attacks and the extent of the injuries as alleged, the Director considered that the ill-treatment inflicted upon the applicant by the SAD people did not attain the requisite minimum level of severity.  The Director found that the SAD people did not have real intention to kill the applicant, as they did not do so notwithstanding there were many opportunities in their past encounters.  The Director further considered the applicant’s claim that he was wanted by the police unconvincing, as he was able to leave India through the official immigration channel without any problem.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  

6.  By a Notice of Further Decision dated 5 June 2017, the Director rejected the applicant’s claim on BOR 2 risk[5] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.  

The Board’s decision

7.  The applicant appealed to the Board against the Director’s decisions.  The Board conducted an oral hearing on 20 December 2017.  The Board found that the applicant failed to show a reasonable degree of likelihood that the feared risk would materialize, as his assertions were not supported by concrete evidence and there were inconsistencies and implausibility in his account of events. The Board considered that even if the applicant’s evidence is accepted, the low intensity of the past ill‑treatment is indicative of small future risk of harm upon his return.  The Board also found that state protection would be available to the applicant in India and internal relocation is viable so the feared risk, if any, can be alleviated.   Thus, the Board decided that the applicant failed to substantiate his non-refoulement claim on the applicable grounds and rejected the appeal on 21 May 2018.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 29 May 2018 to seek leave to apply for judicial review against the decision of the Board. He only stated in his supporting affirmation that the decisions made by the Director and the Board are unfair and unreasonable.

The judge’s decision

9.  DHCJ Pang considered the leave application on paper.  The judge found that the applicant’s assertion is general and vague without particulars.  It does not have any reasonably arguable basis to challenge the findings of the Board.  The judge considered both the decisions of the Director and the Board and found that they had applied high standards of fairness in their decisions.  The judge held that there is no prospect of success in the intended judicial review and dismissed the leave application on 15 October 2020.

The grounds of appeal

10.  The applicant stated as his grounds of appeal in the Notice of Appeal filed on 27 October 2020 that his life will be in danger in his home country and the problem is getting worse.

Legal Principles

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.  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 Country of Origin Information 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.

13.  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.

Analysis and disposition

14.  The applicant’s grounds of appeal are without merits.  He has not provided any particulars, elaboration or evidence to support his allegation that the decisions of the Director and the Board are unfair and unreasonable. He has also failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  There is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review. We therefore dismiss the appeal.