GURSEWAK SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 48/2024, [2024] HKCA 838

On Appeal From [2024] HKCFI 308

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 48 OF 2024

(ON APPEAL FROM HCAL NO 574 OF 2020)

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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 Bruno Chan (“Judge”) on 26 January 2024[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 26 March 2020.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 17 May 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1974.  He entered Hong Kong as a visitor on 22 October 2010 and was permitted to remain until 5 November 2010.  The applicant overstayed and was arrested by the police on 6 December 2012 for the offences of overstaying, theft and possession of an identity card relating to another person.  On 11 March 2013, he lodged his torture claim by way of written representation on the basis that if he returned to India, a powerful politician called Mahinder Gattu (“MG”) and the applicant’s step brothers would harm or kill him due to a land dispute.  The factual background of the applicant’s claim was set out at [12] to [22] of the Board’s decision dated 14 November 2013.

3.  By notice of decision dated 30 August 2013, the Director assessed the applicant’s claim in relation to torture risk[2] and determined it against him.

4.  The applicant appealed to the Board against the Director’s decision dated 30 August 2013.  The appeal was determined without an oral hearing.  The Board found that the matter was a private dispute over land, that the applicant’s alleged injuries were minor at best, that there was no state involvement or acquiescence of public officials, that the threat was localized and internal relocation was a viable option. Therefore, it held that there was no real risk of torture faced by the applicant in the event of refoulement to India.  By its written decision dated 14 November 2013, the Board dismissed the applicant’s appeal in respect of the risk of torture and confirmed the Director’s decision dated 30 August 2013.

5.  By notice of decision dated 17 May 2018, the Director assessed the applicant’s claim in relation to all remaining applicable risks and determined it against him.  Those grounds are BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5]

6.  The applicant also appealed to the Board against the Director’s decision dated 17 May 2018.  An oral hearing was held on 17 January 2020, during which the applicant gave evidence and answered questions from the Board.  In favour of the applicant, the Board accepted that he was involved in a land dispute with MG and his step brothers and that he was threatened and assaulted by MG and his step brothers to a minor extent on one occasion.  However, the Board did not accept that MG and his step brothers would harm or kill him if he returned to India as he asserted that they had already taken over the disputed land, and did not accept that he would face risk throughout India as there no was no evidence that the power or influence of MG extended beyond the localized area and they had full control over the disputed land already.  Nor did the Board accept that his injuries amounted to the required severity, or that there was anything to suggest that he would not receive state assistance, if sought.

7.  The Board proceeded to find that there was in fact no real risk of harm if the applicant returned to India, because this was a private dispute over land without any state involvement, MG already had full control over the disputed land so he was unlikely to expend extensive resources to search for the applicant throughout India, the risk of harm was a localized one, and state protection and internal relocation were available to the applicant.

8.  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 26 March 2020, the Board dismissed the applicant’s appeal in respect of all the remaining applicable grounds and confirmed the Director’s decision dated 17 May 2018.

The Judge’s decisions in the court below

9.  On 9 April 2020, 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 dated 26 March 2020.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply repeated the basis of his claim for non-refoulement protection and annexed the Board’s decision dated 26 March 2020.

10.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 26 January 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [12] to [16] of the Form CALL-1 as follows:

“ 12. On 9 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim that his life is still at risk that he cannot return to his home country, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

13. 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.

14. In the Applicant’s case, the fact is that it has also been correctly established by both the Director and the Board in their respective decision that the risk of harm in his claim if real 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.

16. For the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his leave application.”

Appeal to this Court

11.  On 8 February 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that his life was not safe as his step brothers wanted to kill him for the farmland, that the police would not listen to him, that his step brothers had attempted to find him at his locality in October 2023, that his step brothers were in power and could do anything, that his step brothers had political support and links to high officials, and that they have criminal backgrounds and might cause physical harm. 

12.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

13.  The applicant has lodged written submissions in which he stated that the Judge’s decision was unfair, that the Judge did not “observe” his situation, that the Board’s decision was unreasonable, that the Judge failed to take into account many things and issues that were skipped and ignored in the case, and that the Judge’s decision was unfair as it favoured the decisions of the Director and the Board.

Discussion

14.  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, 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.

15.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because MG already had full control of the disputed land so the applicant would unlikely still be a person of interest to MG or his step brothers and internal relocation and state protection would be viable 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 applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

16.  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.    

17.  The applicant’s appeal is accordingly dismissed.