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CACV 236/2022, [2023] HKCA 1239
On Appeal from [2022] HKCFI 1661
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 236 OF 2022
(ON APPEAL FROM HCAL NO 2537 OF 2018)
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| BETWEEN |
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MANDEEP SINGH |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD |
1st Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
2nd Putative Respondent |
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| Before: |
Hon Chow JA and Lisa Wong J in Court |
| Date of Judgment: |
21 November 2023 |
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JUDGMENT
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Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 June 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 November 2018, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 April 2018.
BACKGROUND
2. The Applicant is a national of India. He entered Hong Kong illegally on 21 January 2016. He surrendered himself to the Immigration Department on 18 February 2016, and he raised a non-refoulement claim on the basis that if he returned to India, he would be harmed or killed by his uncle over a land dispute between his uncle and his father in their home village. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.
3. By a Notice of Decision dated 27 April 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s Decision to the Board. On 2 November 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §8 of the CALL-1 Form, as follows:
“In its decision the Board found on the basis of the Applicant’s evidence given in his appeal before it that whatever problems he might have with his uncle in the past arose from what was essentially a land dispute between his uncle and his father but all his family members including his father have since been living peacefully and safely in his home village without any problems from his uncle since the Applicant had left the country that it was not accepted that there would still be any risk of harm that he may face from his uncle upon his return to India, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant if needed as well as reasonable internal relocation for him to move safely to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”
THE JUDGE’S DECISION
5. On 12 November 2018, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision and the Board’s Decision. No proper ground for seeking relief was given in the Form 86. Attached to his supporting affirmation was a document titled “Grounds on which Relief [is] sought”. In that document, the Applicant contended that the Director and the Board’s Decisions were not reasonable or fair. He complained that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to support his non-refoulement claim as well as his appeal, and the Director had shown an unfair attitude towards him or his claim. He also complained that the Director had failed to attain the high standard of fairness required by the Wednesbury test in reaching his decision.
6. On 7 June 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[9] On 12 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both decisions of the Director and the Board, and put forth the following grounds for his intended challenge…
[10] These are however just some broad and vague assertions of the Applicant without sufficient details or particulars or proper elaboration as to how they apply to his case or in what way would they be relevant to his claim which was based even on his own case a private land dispute between his family and his uncle without any official involvement that I fail to see how it would engage the BOR 2 ground of right to life or how extra-judicial killings or corruptions or incompetency of the administration in his home country would be relevant to his case, or in what way was he not given sufficient time or opportunity to present his case to the Director or the Board.
[11] As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant in his proposed grounds, I do not find either of them reasonably arguable for his intended challenge or any merits in his intended application.
…
[13] In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.
[14] 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.”
THIS APPEAL
7. In his Notice of Appeal dated 12 June 2022, the Applicant raised the following grounds of appeal:
“1. The Applicant submits that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.
2. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.
3. The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that the Applicant had failed to advice any credible evidence to prove material elements of his claim.
4. It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that to when he is in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.
5. Surprisingly, the director in my Decision while referring to relevant COIs. Kept including meaning which suited his pre-conceived conclusion. This was a clear case of unfair attitude shown by the Director which in itself is enough to render his Decision void.” [sic]
8. The Applicant failed to lodge any written submissions not less than 28 days before the scheduled hearing of the appeal, contrary to the directions of the Registrar of Civil Appeals dated 19 September 2023. Accordingly, he is deemed to have abandoned the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper.
9. On 20 October 2023, the Applicant belatedly lodged written submissions in support of his appeal. In those submissions, he made some generic submissions on general principles of law relating to non-refoulement claims, but failed to explain how they are applicable to his case.
10. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing. In fairness to the Applicant, we shall take into account his written submissions when considering his appeal.
DISCUSSION
11. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).
12. Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
13. The Applicant’s grounds of appeal are bare, general assertions without particulars. Further, Grounds 2 to 5 are directed against the Director and/or Board’s Decisions, not the Judge’s decision. The Applicant’s written submissions do not add anything of substance to his appeal. The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
14. The Applicant’s appeal against the Order has no merit and is dismissed.
(Anderson Chow)
Justice of Appeal |
(Lisa Wong)
Judge of the Court of First Instance |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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