RE BALJINDER SINGH

CACV 102/2018

[2018] HKCA479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 102 OF 2018

(ON APPEAL FROM HCAL 426/2017)

____________________

________________

JUDGMENT

________________

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 29 March 2018 in HCAL 426/2017 refusing leave to the applicant to apply for judicial review. The applicant is an Indian national. He first came to Hong Kong on 23 December 2013 and was permitted to remain as a visitor. The applicant overstayed since 7 January 2014 and surrendered to the Immigration Department on 9 January 2014. He lodged a non-refoulement claim on 3 March 2014. His claim was based on his fear of being harmed, or even killed, by members of the Congress Party (“CP”) and the Akali Dal party (“ADP”) if he were returned to India because he and his family are loyal supporters of the Khalistan movement.

2.  By the Notice of Decision dated 20 January 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The Director considered that the applicant’s fear would be unlikely to materialize because there was an absence of ill-treatment against the applicant from any member of the CP and ADP and this was indicative of a small future risk of harm upon his return to India.  The availability of state protection and the possibility of relocation would further lower or negate the level of risk of ill-treatment.  The decision covered BOR2 risk, BOR 3 risk, torture risk, and persecution risk. 

3.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 3 July 2017, the Board dismissed the appeal on 13 July 2017.

4.  On 19 July 2017, the applicant sought leave to apply for judicial review in HCAL 426/2017.  The intended judicial review was in respect of the Board’s Decision.  The affirmation in support filed on 19 July 2017 provided the following grounds:

 (1) The Board had failed to properly inquire into the relevant country of origin conditions of India and failed to consider the evidence of violence towards minorities in India.

 (2) The Board had failed to consider and assess whether state protection was truly available to the applicant.

 (3) The Board failed to request the applicant to submit additional facts regarding his claim under BOR2 risk that caused him to fail to establish the claim.

5.  On 29 March 2018, the judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and of the Board, the judge gave the following reasons at [15] – [21] for his refusal to grant leave:

“15. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He has analysed the material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out.

16. The adjudicator has clearly considered relevant, objective, up-to-date and internationally recognised Country of Origin information; he has set it out and cited it in his decision. From his decision, it is clear that he had an interactive conversation with the applicant about the information in hand. Much of it supported the applicant’s evidence. There is no merit in the applicant’s ground and submission.

17. There was no need for the adjudicator to go into whether there was State protection or State acquiescence because of his finding that there was no risk of harm to the applicant if refouled; there was no merit in this ground.

18. The applicant would not have received a separate letter from the Immigration Department inviting him to submit additional information to support a BOR 2 risk claim because the Director considered this applicable ground at the same time as the other three applicable grounds and dismissed it at the same time as he dismissed the other three applicable grounds on 20 January 2017. He did not deal with the BOR 2 risk claim separately.

19. As for the applicant’s new evidence or contradictory evidence, it was not before the adjudicator or what was considered by the adjudicator as part of the evidence that led to his decision. It would be inappropriate for this court to consider and take into account new evidence in an application of this nature.

20. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

21. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

6.  In the Notice of Appeal dated 12 April 2018, the applicant in gist put forward the following grounds of appeal:

 (1) The applicant disagrees with the judge’s finding at [17] of the CALL-1 Form that “there was no need for the adjudicator to go into whether there was State protection or State acquiescence because of his (the Board) finding that there was no risk of harm to the applicant if refouled.”

 (2) It was unfair and improper to find that there was no risk of harm to the applicant as his grandfather was shot dead by the member of ADP for his support of the political movement and his father was arrested and detained for the same reason.  The applicant feared that he would suffer the same inhumane treatment if refouled.

 (3) The applicant further considered that he should not be deprived of the freedom to participate in political movement in order to avoid being persecuted and there is no state protection available for him.

7.  In the skeleton submissions lodged by the applicant on 4 July 2018, he raised essentially the same grounds in the Notice of Appeal.

8.  We heard the appeal on 1 August 2018. 

9.  Having considered the submissions of the applicant in light of the material before us, we found the judge’s observations to be justified.  We deal first with the matters raised in the notice of appeal and skeleton submission.

10.  For Grounds 1 and 2, we agree with the judge’s finding in [17] of the CALL-1 Form that “there was no risk of harm to the applicant if refouled” and there was no merit in this ground.  The Board had duly considered the applicant and his family’s involvement in the Khalistan movement and risk of harm that might be faced by the applicant if refouled in [23] to [32] of the Board’s Decision.  The Board had rightly found at [32] of the Board’s Decision that “there to be only a remote or speculative risk and therefore not a real risk the applicant will face harm from the Punjab police, supporters of Akali Dal, supporters of [Congress Party] or any another opponent to the Khalistan movement because his father is an active albeit low-level supporter of the Khalistan movement and/or the appellant is a non-active supporter of the Khalistan movement, if the Appellant is refouled to India.”  It was on the basis that the applicant would not face any or any risk of harm if refouled that the Board found it unnecessary to go into further assessment of State protection or State acquiescence.  We take the view that the Board’s decision is justified and we do not see any error of law and procedure in the Board and the judge’s findings.  Grounds 1 and 2 failed.

11.  Ground 3 is misconceived and devoid of merits. This court cannot see how the decisions of the Director and Board would deprive the applicant of the right to participate in political movement if and when he returns to India.  We agree with the findings made by the judge, the Director and the Board that there is no risk of harm if the applicant is refouled and it is undisputed that no harm had ever been inflicted on the applicant when he was in India.  It is the applicant’s own speculation that if he participates in any political movement in India, he would be persecuted or tortured.  Further, it is the applicant’s evidence given at the Board’s hearing as mentioned in [31] of the Board’s Decision that “he has not been, is not and will not be an active support[er] of the Khalistan movement”.  It seems it is the applicant’s intention not to actively participate in the Khalistan movement in future.  Even if he changes his mind on this matter, he is at liberty to do so, but this does not concern the present application for leave to apply for judicial review.  We do not consider this ground is reasonably arguable.

12.  Having read the materials available before us, we are of the viewthat the findings of the Board and the Director, as well as the observations of the judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Director and the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  We do not see any reasonable basis to challenge the decisions of the Director and the Board by way of judicial review.  Accordingly, we agree with the judge that leave to apply for judicial review should be refused.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.