HARJEET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 166/2024, [2024] HKCA 913

On Appeal From [2024] HKCFI 1018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 166 OF 2024

(ON APPEAL FROM HCAL NO 369 OF 2019)

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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 To (“Judge”)  on 15 April 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 24 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 18 April 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1995.  He last entered Hong Kong on 26 January 2015 as a visitor permitted to remain until 9 February 2015.  However, the applicant overstayed and surrendered to the Immigration Department on 10 February 2015. He lodged his non-refoulement claim on 13 March 2015 and later submitted his non-refoulement claim form dated 10 April 2018.  The applicant’s claim was made on the basis that if he returned to India, his uncle and a police officer (his uncle’s wife’s cousin)  would harm or kill him due to a land dispute.  The factual background of the applicant’s claim was set out at [36] to [89] of the Board’s decision.

3.  By notice of decision dated 18 April 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 22 November 2018, during which the applicant gave evidence and answered questions from the Board.  Having carefully considered the applicant’s claims, the Board found that the applicant was not a witness of truth and that he had fabricated his claims in relation to the land dispute with his uncle.  It found that there were many inconsistencies and problems with the applicant’s evidence between his non-refoulement claim form and his oral submissions in relation to, inter alia, details of the transferral and leasing of the disputed land, the uncle’s motive and actions over a period of 6 years, details about when the applicant’s mother left the family, and where the applicant went after he left his home village.  Accordingly the Board rejected the applicant’s claims, both individually and cumulatively, in their entirety.

5.  The Board proceeded to find that there was in fact no real risk of harm if the applicant returned to India, because the Board did not accept that the applicant owned any land in the village, that the applicant’s father was so mentally ill that the land was transferred to the applicant, that the applicant’s mother ever left the family, or that the uncle was allegedly plotting to take away the applicant’s father’s land.  The Board further found that the applicant could return to India without facing any problems.

6.  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 24 January 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decisions in the court below

7.  On 11 February 2019, 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.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply stated that he was not satisfied with the decision of the Board and annexed the Board’s decision.

8.  An oral hearing was held on 13 March 2024.  The Judge considered the application on the basis of the documents and the applicant’s oral submissions.  On 15 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [18] to [22] of the Form CALL-1 as follows:

“ 18. The Applicant’s complaint about error of law is, in substance, a challenge against the Board’s finding of fact that he would not be subject to any of the proscribed risks of harm from his uncle and the Officer upon his return to India. That is not permissible unless the finding is the result of error of law, namely that the Board made the finding without a hearing de novo or by relying on outdated COI or COI from unreliable sources (the Applicant having confirmed that he had no complaint about procedural unfairness and irrationality).

19. The meaning of hearing de novo was explained to the Applicant. He could not explain what was the basis of his complaint that the appeal was not a hearing de novo. On the face of the Decision, the Board conducted a fresh hearing with the Applicant giving evidence. It made finding of credibility, analysed the evidence, made finding of fact, discussed the application of the law to the facts found. It did not make the Decision by accepting or rejecting the Director’s finding or decision in the Notice. It made a fresh determination. The Applicant agreed with the Court’s suggestion that a hearing de novo had been held.

20. The Applicant could not identify what were the outdated or unreliable COI relied on by the Board. In essence, the Board’s finding is that the Applicant was incredible and failed to discharge his burden of proof. That finding was based on the inconsistencies between the Applicant’s testimony before the Board and the evidence in his NCF. The Board did not rely on any COI in coming to that finding.

21. The other grounds disclosed in his submission are wholly lacking in particulars. He did not explain or demonstrate in what way the Board failed to assist him as an unrepresented claimant and in what way was the Board in breach of the high standard of fairness. The Applicant explained, as is expected, that the submission was prepared by his “friend” and he did not understand the meaning of hearing de novo and had no idea what COI he was complaining about.

  22.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  Obviously, the Board approached the Applicant’s claim on the basis of his evidence and made its finding afresh. There is nothing to suggest the Board was just endorsing or rubber stamping the Director’s decision in the Notice.  The Board found the Applicant’s evidence incredible and his case concocted.  The Applicant had therefore failed to establish the factual basis in support of his claim for protection.  As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal.  It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. ”

Appeal to this Court

9.  On 29 April 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he did not agree with the Judge’s decision, that he had a severe problem in his home country, and that he would be killed by his enemy if refouled.

10.  The applicant has lodged written submissions in which he stated that the Judge was wrong in law for not finding the decisions of the Director and the Board to be irrational, that the Judge reviewed the matter lightly contrary to the high standards of fairness required, that the Judge was wrong in law for not finding the decisions of the Director and the Board to be procedurally unfair because they were required to give reasons to justify their decisions, that the Judge might not have analysed the applicant’s claims properly, that the Judge’s decision to refuse the applicant’s appeal was unreasonable, that the Board failed to allow for the applicant to arrange to provide relevant evidence, that the applicant would face hardship if refouled, and that the Board had significantly relied on sources of news which were not officially recognized or was simply hearsay.  No particulars were provided by the applicant.

11.  The applicant failed to attend the hearing of the appeal without providing any reason for his absence.  We shall determine the appeal on the basis of the available documents, materials and evidence submitted by the applicant.

Discussion

12.  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.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant was not a witness of truth and it rejected the applicant’s claims.  So, the Board concluded that the applicant could return to India without facing any problems.  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 ground for saying that the Board’s decision should be impugned due to public law errors.  As for the ground on lack of opportunity to produce relevant evidence before the Board, the applicant did not specify what the relevant evidence might be or why it was not produced earlier to the Director or the Board.  As for the ground relating to the Board relying on unofficial COI, the Judge had already pointed out that the Board had found the applicant to be incredible without relying on any COI to reach this conclusion at [20]. As for the grounds advanced in his written submissions, they consist of mere general and bald assertions regarding the decision of the Director, the Board and the Judge without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  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.

15.  The applicant’s appeal is accordingly dismissed.