SATNAM SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 567/2018

[2019] HKCA 433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 567 OF 2018

(ON APPEAL FROM HCAL 167 OF 2018)

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J U D G M E N T

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

Introduction

1.1.   This is an appeal by Satnam Singh (“the appellant”) from an order of Deputy High Court Judge Josiah Lam (“the judge”) given on 20 November 2018 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)¹. 

1.2.   The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 25 January 2018 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decisions of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of India born in 1983.  He had received 13 years education and an IT technical diploma.  He used to work as a salesman in India.  He entered Hong Kong on 4 April 2014 as a visitor.  He overstayed and was arrested by the police on 19 April 2014.  He made a claim for non-refoulement the day after but then withdrew it on 11 September 2015. In April 2016, he re-activated his claim for non-refoulement.

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what he alleged was that if he were to be returned to India, he would be harmed or killed by his paternal uncle, Kuldeep Singh (“Kuldeep”) because of a family land dispute.  According to the appellant: 

-   Kuldeep was a retired police inspector and was a member of the Indian National Congress (“INC”), and had a close connection with the leaders of the INC.  The appellant was however unable to name any of these leaders with whom he said Kuldeep had a close connection.

-   Kuldeep wanted to sell a piece of land which was jointly owned by him, the appellant’s father and their brothers.  This was opposed by the appellant’s father and the matter was referred to the Sikh Temple Committee (“the Committee”) for resolution.  The Committee told Kuldeep that he could not sell the land as it was jointly owned. This made Kuldeep angry with the appellant’s father. 

-   One day in around 2013, Kuldeep and their relatives together with some workmen came to the house where the appellant lived with his parents and broke down the partition wall between their house and that of another of Kuldeep’s brothers.  The appellant’s father confronted them, and was injured at his forehead.

-   The appellant’s younger brother called him and he returned home and tried to stop Kuldeep.  Kuldeep threatened to kill him and there was a fierce argument. Kuldeep hit the appellant on the head with a wooden stick, injuring him.  Before he left, Kuldeep threatened to kill the appellant’s family and occupy their house.

-   The appellant’s parents advised him to stay away, so he went to stay with his maternal aunt in another village for 2 months.

-   The appellant was informed by his father that Kuldeep constantly harassed him and threatened to locate and kill the appellant.  His parents also moved to live in another village, leaving their house and land abandoned.

-   The appellant then went to stay in Chandigarh for one and half months.  He heard from a friend that Kuldeep had occupied his family house and was still searching for his whereabouts.

-   The appellant’s parents suggested that he leave the country.  He left Delhi on his own passport and arrived in Hong Kong on 4 April 2014 as a visitor.

-   The appellant kept contact with his family in India by phone and knew that Kuldeep was still looking for him and his family.

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.   What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.   “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.   “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.   What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decisions

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director concluded that the appellant had failed to make out his claim as a matter of fact.  The Director rejected the appellant’s claim for reasons set out in a decision given on 2 September 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 20 June 2017 in respect of “BOR 2 risk” (“the Director’s Decisions”).

The TCAB’s Decision

7.1.  1.   The appellant then appealed to the TCAB which held a hearing at which the appellant was present and gave evidence.  The appellant submitted a copy of a First Information Report filed by a person called Jarnail Singh alleging that he had been assaulted, naming the Appellant and requiring him to attend court at R.S. Pura on 28 September 2017.

7.2.   The TCAB examined his claim on the materials and asked the appellant questions at the hearing in respect of his allegations, but he could not give plausible responses.  Essentially, the TCAB found that there was a private land dispute between Kuldeep and the appellant’s father over land in the village that belonged to the appellant’s father; the appellant and his family had since then moved out and Kuldeep had occupied their house, so there was no need for Kuldeep to continue to search for him as he alleged; in any event, there was no evidence that Kuldeep had any close connection with influential political organizations and the appellant could not name any persons in the INC that he alleged Kuldeep was close to; the appellant’s allegation that the police did not take action on his father’s report was merely an impression based on his allegation that the police did not attend on the day of the attack to take evidence at the scene; the police had never asked him for a bribe, but he did not report the alleged attack on him to any police units or other organizations; he had given inconsistent versions as to whether Jarnail (the person who filed the complaint in the FIR) was present at the event; he had lived in other places in India without any harassment or threat from Kuldeep; and he had been able to use his own passport to leave the country.  The Board found he had failed to show that any treatment he would face would attain a minimum level of severity, or that there was any genuine and substantial risk of the alleged ill-treatment, or that there was any state acquiescence.  Since the appellant failed to establish his case, the TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”).

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The appellant set out various grounds which are summarized in the judge’s decision below.

The Judge’s Decision

9.  The appellant appeared at the hearing before the judge where a Punjabi interpreter was present to assist him.  The judge considered all the papers and the appellant’s grounds for leave to apply for judicial review and refused leave for reasons set out in his decision, in particular

“35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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.”.

37. The Applicant accused the Adjudicator failed to give him sufficient time and chance to arrange evidence for his appeal. The Applicant's allegation was vague and he failed to provide specifics.

38. The Adjudicator’s report was a detailed one. It showed the Adjudicator was in joint endeavour with the Applicant during the appeal hearing. The Applicant had been given reasonable and sufficient opportunities to state and explain his case. There was no evidence that the Applicant had complained to the Adjudicator about lack of time and chance to arrange for his evidence.

39. The Applicant complained the Adjudicator’s decision was not reasonable or fair. He argued there were human rights reports supporting his assertion that the administration in the Jammu District where he lived was corrupt and incompetent. He maintained there was real risk to his life in India.

40. The Adjudicator had studied the Applicant's case in detail and carefully. He disbelieved the Applicant's claim since it contained a number of inconsistencies and implausible features, which the Applicant failed to explain satisfactorily. The Adjudicator had proper basis for his finding and conclusion, which were not Wendensbury unreasonable.

41. The Adjudicator referred to relevant country-of-origin information (“COI”). He found reasonable state protection and internal relocation were available in the Applicant's case. Such finding was not Wendensbury unreasonable.

42. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. He had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated.

Conclusion

43.    The Applicant's complaints are not reasonable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 4 December 2018, the appellant appealed the judge’s order to this court.  The grounds of appeal in the Notice of Appeal are as follows:

“Last time my hearing time, he asked me all question then I gave all the answer. I don’t satisfied in that decision. I want again appeal thanks. I tell him I don’t want go back India because I call my family he told me don’t come back home”.

Legal Principles

11.  It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.   The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2.   When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration²and I will not repeat them here.  

11.3.   Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong³.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall⁴are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

13.1.   The judge was correct in holding that the TCAB was entitled to make the findings that it did.  As explained earlier, the appellant is not permitted to ask for yet another re-hearing of arguments on facts at this stage of the appeal process. 

13.2.   There was no proper ground of appeal.  We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

14.  For the reasons set out above, this appeal must be dismissed.