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

CACV 170/2025, [2025] HKCA 877

On Appeal From [2025] HKCFI 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 170 OF 2025

(ON APPEAL FROM HCAL NO 3672 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Philips Wong (“Judge”)  on 27 March 2025[1] refusing 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 (“Board”)  dated 4 December 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 24 August 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1969.  He last entered Hong Kong on the strength of his Indian passport on 16 July 2012 and was permitted to stay until 30 July 2012, but he overstayed.  The applicant was subsequently arrested by the police on 15 September 2012 and he submitted a written representation for torture claim on 17 September 2012 and a written representation for non-refoulement claim under the unified screening mechanism (“USM”)  on 16 April 2013.  The applicant’s claim was made on the basis that if he returned to India, he would be harmed or killed by his former customers for compensation, by his creditors due to his inability to repay the loans, by a creditor named Rup Singh and some politicians due to his inability to repay a loan and unwillingness to work for them as a drug courier in lieu of repayment, by employees of a company called A2Z Electrical (“A2Z”)  due to his unwillingness to withdraw a police complaint made against them for their outstanding payment owed to him, and by the Haryana Electricity Board due to complaints against him filed by former customers.  The factual background of the applicant’s claim was set out at [10] to [33] of the Board’s decision dated 4 December 2019.

3.  By notice of decision dated 15 March 2013, the Director assessed the applicant’s claim in relation to torture risk[2] and determined it against him.  The applicant appealed to the Board against the Director’s decision, but the Board rejected the appeal on 14 May 2013.  According to the papers, the decision of the Board dated 14 May 2013 is not a subject matter of this appeal.

4.  By way of letter dated 4 May 2018, the Director invited the applicant to submit a supplementary claim form for assessment of his claim under the USM for all applicable risks, except torture risk.  The Director also provided the applicant with a copy of his previous documents in relation to his torture claim for his reference in preparation of his non-refoulement claim.  The applicant submitted the supplementary claim form dated 12 June 2018 and the usual screening interview was conducted.

5.  By notice of decision dated 24 August 2018, the Director further assessed the applicant’s claim in relation to all remaining applicable risks, except torture risk, and determined it against him.  Those grounds are BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk. [5]

6.  The applicant appealed to the Board against the Director’s decision dated 24 August 2018.  An oral hearing was held on 30 October 2019, during which the applicant gave evidence and answered questions from the Board.  The Board found that parts of the applicant’s written claims were detailed and plausible, and that he submitted a number of documents in support of some aspects of his claims.  In favour of the applicant’s credibility, the Board accepted the applicant’s claims about his business installing electrical equipment in his home village, his sub-contractor work assigned by A2Z, defaults in payment to him by customers and A2Z, the faulty equipment that resulted in customers demanding compensation and reporting complaints against him to the Haryana Electricity Board, his bribes to local officials to secure approvals for the work, and the threats and assaults suffered by him from his creditors and customers.  However, the Board did not accept that the applicant would face harm from employees of A2Z, from the local government employees to whom he paid bribes, or from the Haryana Electricity Board.  It further did not accept that he was recruited to be a drug courier under duress by his creditors and some politicians.

7.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to India. It found there was in fact no real risk of harm if the applicant returned to India, because the disputes were of a private nature, his problems were localized, the risk of harm did not attain the requisite minimum level of severity, and internal relocation to large cities, such as Mumbai or Delhi, would be a viable and safe option for the applicant.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to India.  By its written decision dated 4 December 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds except for torture risk, and confirmed the Director’s decision dated 24 August 2018.

The Judge’s decision in the court below

8.  On 10 December 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  His ground of appeal was that he lacked legal assistance in preparation of his claim before and during the appeal process, as well as lacking language assistance.

9.  The Judge considered the application on the basis of the documents and the submissions of the applicant at the oral hearing fixed on 4 March 2025.  On 27 March 2025, the Judge issued his decision, dismissing the application for leave to apply for judicial review.  The reasons were set out in [5] to [10] of the Form CALL-1 as follows:

“ 5. The applicable legal principles relating to application of this sort are well established. 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 the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI)  materials, 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. (See Nupur Mst v Director of Immigration [2018] HKCA 524, at §14)

6. In the Form and in the supporting Affirmation, the Applicant argued that the Board did not properly assess his claim. He further alleged that he was not provided free legal assistance, and had no legal assistance during and prior to the appeal process. As the Applicant said he cannot write English or Cantonese (which I take it to mean Chinese), the Applicant claimed that this affected his presentation and as a result, he was never given a fair assessment.

7. I do not consider the Applicant’s contention meritorious. First, the Court of Appeal has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakhevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a claimant under Convention Against Torture (CAT), or a claimant under Articles 2 or 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap. 383)  or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Ahmed Syed Rafiq [2018] HKCA 178, at §22. The Applicant had the benefit of Duty Lawyer Service when lodging a Supplementary Claim Form dated 12 June 2018. I do not find anything amiss arising from the alleged lack of legal representation in the process before the Board. The Applicant was also provided a fair opportunity to present his case before the Board on 30 October 2019 with the assistance of an interpreter. I further note that the Applicant did not raise this “lack of legal assistance” argument before the Board.

8. Second, in so far as the Applicant complained about the language difficulty, in Re Karamjit Singh [2018] HKCA 460, the Court of Appeal adopted the rationale of the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit. In any event, I note that all the court documents (the Form and the supporting Affirmation)  were all written in English. This indicates either the Applicant is familiar with the English language or that he had access to, or was able to seek, such language assistance as he may require. There is no evidence to suggest that there was procedural unfairness in this regard.

9. Further, having fully considered the Board’s Decision. I do not find any error of law, procedural unfairness or irrationality. Neither has the Applicant been able to demonstrate any of the same. There is nothing to indicate that the Board had failed to take into account any relevant matters. The Board’s Decision was comprehensive with adequate reasons provided. It satisfies the enhanced Wednesbury test and is not Wednesbury unreasonable or irrational. There is plainly no basis to say that the Board had failed to assess the Applicant’s claims properly.

   10.  In the premises, I am not satisfied that the Applicant’s intended challenge of the Board’s Decision is reasonably arguable with any realistic prospects of success.  Accordingly, I refuse to grant leave for judicial review and the Leave Application is hereby dismissed.”

Appeal to this Court

10.  On 2 April 2025, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he would be killed if refouled and that the Board did not scrutinize properly and only followed the Director’s decision. 

11.  As the applicant did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the directions of the Court.  We shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the disputes were private and localized, the risk of harm did not attain the requisite minimum level of severity, and internal relocation to large cities, such as Mumbai or Delhi, would be a viable and safe option for the applicant.   These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The Board had, in fact, given its detailed reasons and analysis for its decision, contrary to the applicant’s allegation that it simply confirmed the Director’s decision.   As such, the applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.  The applicant’s appeal is accordingly dismissed.