RE GURJIT SINGH

CACV 464/2020

[2021] HKCA 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 464 OF 2020

(ON APPEAL FROM HCAL 718 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 Gurjit SINGH, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 2 September 2020 refusing him leave to commence judicial review proceedings (“Judge’s Decision”).  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 13 April 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”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 4 July 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 now aged about 36, is a fear of being attacked or even killed by his father’s tenant Manga Singh (“Manga”) over a land dispute if he should return to India.  The circumstances said to have given rise to such alleged fear were summarised in detail in paragraph 7 of the Director’s Decision and in gist in paragraphs 20 to 25 of the Board’s Decision and [1] to [6] of the Judge’s Decision embodied in the Form CALL-1 dated 2 September 2020 [2020] HKCFI 2208 (“Form CALL-1”).

3.  Briefly:

(1)   The applicant’s father leased a piece of agricultural land (“Land”) to Manga who is himself a rich and well-connected landowner in his home village.

(2)   In around mid 2004, the applicant and his father attempted to repossess the Land but were prevented from doing so by Manga and 3 or 4 of his men who threatened to kill them if they insisted on repossessing the Land.  An argument and fight ensued.  The applicant’s father was captured and held by their assailants.  The applicant escaped to get help. However, by the time he and his uncle arrived at the Land, they found his father hung to death.

(3)   When the applicant and his mother made a complaint to the police, it was the applicant who was arrested on some trumped up drug trafficking charges.  The applicant was detained in a police cell for 9 days during which he was constantly tortured with a leather belt. He sustained injuries to his legs, left thigh and right calf, which took at least a month to heal.  However, he refused to confess to any of the fake charges.  He was released after his uncle had paid a bribe.

(4)   Although the applicant did not see Manga or his men again after his release, he learnt from his uncle that Manga had posed death threats against him.  Fearing for his safety, he took shelter with his grandparents uneventfully for months.

Entry into Hong Kong, arrest and lodgment and processing of NRF Claim

4.  The applicant arrived in Hong Kong on 9 July 2005.  He was permitted to stay as a visitor until, but he did not leave on, 19 July 2005. He was arrested for overstaying on 24 February 2006.  

5.  He made a claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Claim”) on 1 March 2006.  The applicant then had legal assistance and representation from the Duty Lawyer Service.  He completed the relevant questionnaire dated 15 February 2012 and a supplementary claim form dated 27 April 2017.  The Torture Claim, in respect of which the Director’s representatives interviewed the applicant on 17 April 2012, was rejected by the Director by a notice of determination dated 10 May 2012. 

6.  The applicant then lodged the NRF Claim by written representation dated 15 September 2013.  In processing the NRF Claim, the Director’s representatives interviewed the applicant again on 20 June 2017.

Director’s Decision

7.  The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection (other than torture risk[1] which had already been dismissed): persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)   First, the past ill-treatment did not attain a minimum level of severity. 

(2)   Second, the availability of state protection would further lower or even negate the level of risk (if any).  There is objective country of origin information (COI) showing that the Indian government does protect its citizens’ rights and has taken practical steps to monitor the conduct of the police and improve their effectiveness.

(3)   Third, reasonable internal relocation alternatives are available in such a vast and populous country as India.  There is no reasonable likelihood that Manga can locate the applicant throughout the country.

Appeal to Board and Board’s Decision

8.  The applicant appealed against the Director’s Decision to the Board.

9.  The Board conducted a rehearing of the NRF Claim on 26 March 2018 at which the applicant, with the assistance of a Punjabi interpreter, testified before, and answered questions by, the Board.

10.  The Board dismissed the appeal on all 3 grounds for non-refoulement protection covered by the Director’s Decision.  It found that the applicant had fabricated the murder of his father by Manga.  The Board also spotted various inconsistencies between the applicant’s evidence before the Board and his earlier accounts.  It concluded that the applicant is not at risk from any of the proscribed harms in the reasonably foreseeable future.  The Board further found the alleged risk, if any, to be a localised one, which the applicant can avert by relocating to say Khalra or Mumbai where he would be able to lead a relatively normal life without hardship.

Application for leave for judicial review and Judge’s Decision

11.  By a Notice of Application for Leave to Apply for Judicial Review issued against the Board under HCAL 718/2018 on 25 April 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision.  In support of the Form 86, the applicant merely asserted in the affirmation filed on the same date that his life would be in danger in his country.

12.  As the applicant did not request for an oral hearing, after considering the application on paper, the Judge refused leave.  His reasons can be found in [12]-[15] of the Form CALL-1:

“12. 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.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 26 – 37 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in 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 to challenge the finding of the Board.

14. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision 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 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.

15. 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.”

Appeal to Court of Appeal and grounds of appeal

13.  By a notice of appeal filed herein on 14 September 2020, the applicant appealed against the refusal of leave for judicial review on the following “ground” (sic):

“The judge of the High Court Mr Bruno Chan ordered me to refused my leave application. But I do not agree with him. As he could not find any good ground to cancel my leave. On the other hand my points was strong.

Judge could not tell me why he cancel my leave. He totally follow Director and Adjudicator suggestion. He did not find any law error of law. How funny!

No body consider my life.”

14.  On 15 April 2021, the applicant lodged written submission in which, after repeating in gist the events underlying the NRF Claim, he said (sic):

“In his judgment, he support adjudicator and he described my problem story. But he did not want to listen from me. He asked me to tell the error of proceding. But he tell the story.

In his judgement no body cant find any reson to refuse my application.

So I do not agree with the High Court judge. Please consider my leave and protect my life.  Every one is equel on law. And alive in this world is my fundamental right.”

15.  The applicant appeared in person at the hearing of the appeal on 10 May 2021.  He had nothing to add to the notice of appeal or written submission.

Discussion

16.  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 we are concerned with is the Judge’s Decision, which is considered in light of the grounds of appeal raised by the applicant.  And we will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)] and [14(4)].

17.  On this note, we turn to the grounds of appeal.  We understand the applicant to be complaining that the Judge just followed the decisions by the Director and the Board without hearing him and failed to give sufficient reasons for his decision.

18.  We find such complaints to be wholly unmeritorious. 

19.  First, as noted in [12] above, the Judge determined the application for leave for judicial review on paper because the applicant himself did not ask for an oral hearing in the Form 86.  Order 53, rule 3(3) permits a judge to determine a leave application without a hearing, unless one is requested in the notice of application.

20.  Second, 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.  In the instant case, the questions whether the applicant would be at risk of life or torture if he is refouled to India and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  In deciding whether the court may intervene by way of judicial review, the Judge need only scrutinise the Board’s decision for errors of law, procedural unfairness or irrationality.  His role was not to re-assess the NRF Claim.  See again Nupur Mst v Director of Immigration, supra, at [14(1)].  The Judge did not find any error of law because there was not any! The applicant himself has not, in the Form 86 or the accompanying affirmation, advanced any error of law or other public law flaws in the Board’s Decision and the adverse findings of fact made therein against him.  The single much-repeated bare assertion in the Form 86 that his life would be in danger if the applicant should return to India is inconsistent with the findings of both the Director and the Board but the applicant has not raised any material error that undermines such findings of fact.  The application for leave for judicial review of the Board’s Decision was therefore bound to fail and the Judge rightly dismissed it.  That being the case, the Judge has given adequate reasons for his decision.

21.  To conclude, the notice of appeal and written submission before us do not set out 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 otherwise plainly wrong.  We cannot discern any either.

Disposition

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