RE SIDHU DAVINDER SINGH

CACV 45/2019

[2019] HKCA 638

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 45 OF 2019

(On appeal from HCAL 76 of 2018)

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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 by the abovenamed applicant, Mr Sidhu Davinder SINGH, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 25 January 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 10 November 2017 (“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”) by a notice of decision dated 30 December 2016 (“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 in his late twenties, is a fear of being harmed or even killed by a man named Gaggi Singh (“Gaggi”), a police officer in Bathinda City with connection to the ruling Alkali Dal Party. Such alleged fear is said to arise out of the following circumstances:

(1)   The applicant lived in Village Kot Shamir, District Bathinda, Punjab, India with his family including a brother, Darshan Singh (“Darshan”). 

(2)   The sister of a friend of Darshan, Jaspal Singh (“Jaspal”), had a secret relationshipwith Gaggi, which was disapproved by Jaspal’s family.

(3)   For this reason, in February 2015, Jaspal, Darshan and another friend assaulted Gaggi, inflicting him with head injuries and fractures to his limbs.

(4)   Jaspal, Darshan and the other friend were subsequently arrested and detained by the police but were able to make bail pending the police investigation after Jaspal’s family bribed the police.

(5)   Upon recovery from his injuries, Gaggi tried to take revenge on his attackers including Darshan.  Darshan managed to escape, fled the village and went into hiding.

(6)   When Gaggi could not find Darshan, he turned to the applicant.  In May or June 2015, he stopped the applicant while he was in Gaggi’s village and threatened to kill him unless he disclosed Darshan’s whereabouts.  On one occasion while the applicant was driving a car in the village, Gaggi tried to stop him by hitting his car with an iron rod.

(7)   The applicant did not report the confrontation with Gaggi to the police.

(8)   While in Hong Kong, the applicant maintained contacts with his family who told him that Gaggi is still a police officer.

Entry into Hong Kong and lodgment of NRF Claim

3.  When the applicant informed his family of Gaggi’s threats, they became concerned for his safety due to Gaggi’s status as a police officer and his connection with the ruling party.  When the applicant was advised by a friend who was in Hong Kong that he could seek protection in Hong Kong, he left India for Hong Kong via mainland China on 1 August 2015.  When he was refused entry into Hong Kong on 3 and 5 August 2015 on his own Indian passport, he returned to China and later sneaked into Hong Kong by boat on 6 August 2015.  He surrendered to the Immigration Department on 11 August 2015.  He raised the NRF Claim by written representation dated 23 April 2016 and submitted a completed Non-refoulement Claim Form (“NCF”) on 14 October 2016.

Director’s Decision

4.  In processing the NRF Claim, the Director’s representatives conducted a screening interview on 22 November 2016 with the applicant who was represented by the Duty Lawyer Service.

5.  The Director’s Decision covered all applicable grounds: torture risk[1], persecution risk[2], “BOR 3” risk[3] and “BOR 2” risk[4].  The NRF Claim was found to be not substantiated.

(1)   First, it was not accepted that the applicant faced a genuine and substantial risk of harm from Gaggi if he should return to India.  Gaggi’s behavior showed that he had no real intention to cause any serious harm to the applicant (who was not really involved in the dispute between Gaggi and Darshan).  Gaggi had had plenty of opportunities to harm or even kill the applicant if he really wanted to do so.

(2)   Second, Gaggi was not acting in any official capacity.  His supposed connection to the ruling party was based on hearsay and for which the applicant could not give any detail.  The party was certainly not involved in the dispute in question which was private and personal in nature.  Nor did the state government have anything to do with the personal vendetta.  The applicant left India without any trouble. 

(3)   Also, there is objective country of origin information (COI) showing the availability of state protection which would further lower or even negate the level of risk.

(4)   Third, reasonable internal relocation alternatives in a big country like India are available to an able-bodied adult like the applicant.  Given that Gaggi could not locate Darshan, he did not appear to be as powerful or influential as the applicant made him out to be.

Appeal to Board and Board’s Decision

6.  The applicant appealed to the Board.

7.  The Board conducted a rehearing of the NRF Claim on 6 October 2017, at which the applicant was assisted by a Punjabi interpreter

8.  The Board found the applicant consistent in his account of his brother and friends attacking Gaggi who was a policeman and then absconding.  This part of the applicant’s claim, though thin, was simple and unembellished and probably true. 

9.  The Board, however, attached no credence to the applicant’s assertion that he did not complain to the relevant authorities about being subsequently attacked by Gaggi because of the policeman’s political affiliation.  The applicant’s claim that the police would fail to protect him is premised on a supposition and did not cross the threshold of a real risk.  Nor did the Board accept the claim that the 2 attacks on him by Gaggi gave rise to a fear in the applicant that he would be harmed or even killed by Gaggi.  It defies rational belief that someone would take the life-changing and radical decision to flee his country, his family and livelihood on the basis of 2 relatively minor incidents of threats and harassment. 

10.  As to whether the applicant would face a real risk of any form of harm in India, the Board found it unlikely for the applicant to remain a person of interest to Gaggi years after he left India. 

11.  In any event, based on reliable country of origin information (COI) relating to India, the applicant would enjoy sufficient protection from the authorities.  The applicant can further safely and reasonably relocate to a different part of India, especially when there was absolutely no evidence that Gaggi had any influence outside his local area. 

12.  For the aforesaid reasons, the Board dismissed the applicant’s appeal against the Director’s Decision on all applicable grounds.

Application for leave for judicial review and Judge’s Decision

13.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 76/2018 on 16 January 2018, the applicant sought leave to apply for judicial review of the Board’s Decision.  The Form 86 itself did not set out any ground on which the intended judicial review was sought but, as summarised by the Judge at [9] ofthe Form CALL-1 dated 25 January 2019 ([2019] HKCFI 227) (“Form CALL-1”), by the supporting affirmation filed on the same date, the applicant relied upon the grounds of:

(1)   lack of legal representation in his appeal before the Board;

(2)   lack of language assistance in failing to provide him with any translation of the NCF to enable him to check if the interpreter had translated the basis of his claim properly; and

(3)   lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing.

14.  The Judge set out his reasons for refusing leave, after an oral hearing, in [10]-[16] of the Form CALL-1 as follows:

“10. For his complaint in ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12. As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without basis.

13. As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board. There is simply no basis or merit in this ground of the applicant either.

14. The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

15. In the premises and having proceeded to consider 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.

16. 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 and grounds of appeal

15.  By a notice of appeal filed on 31 January 2019, the applicant appealed against the refusal of leave for judicial review on the following ground:

“I am not satisfied with the decision given by you because I cant (sic) go back to my country at this moment. Please help me to stay in Hong Kong until I have (sic) problem in my country.”

16.  The applicant filed written submission on 23 April 2019, which, after introducing himself, asserted as follows:

“My life is not save in my own country.I come to Hong kong sothat i can save my life.I dont want to live in fear that one can leads my life to death or torture.Its not easy for me to protect myself anywhere in my country because my enemies are so strong

I dont have enough sources to protect my self from them They still come to my place to locate me.iam fear if i return to my country i may tortured or killed by my enemies .i dont want to die .No one can help me there because almost everyone scared from them

Police also working as they want .They can give bribe police and police give them permission to do any illegal work .They are using high level of protocol .Death in police custody are comman fact and real culprits are very rare to bring justice.only strong people can survive there.

Please help me to stay in Hong kong until i have these problem iam fear if i return to my country i may tortured or killed..because i dont have enough sources to protect myself..

I hope you wil understand my problem and wil give me your kind favour sothat i can save my life.iam looking towards your kind attention over my application.

Now I left hope only from you.Because at this moment i cant go back to my country .iam seeking protection from you from this danger.

I hope you will give me your kind favour and allow me to stay in Hong kong until i have problem in my own country.i hope i will get your kind favour over my application .i wil be grateful to you for your kindness towards me.”

17.  The applicant appeared in person at the hearing of the appeal on 28 May 2019.  He had nothing to add to his grounds of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

18.  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.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  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)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

19.  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 shall 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)].

Discussion

20.  The applicant has not identified any error of law, any relevant matter not taken into account or any other mistake (plain or otherwise) by the Judge.  Nor can we discern any.

21.  Neither the notice of appeal nor the written submission, as set out above, contained any valid ground of appeal, properly so called.

Disposition

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