RE HARPREET SINGH

CACV 111/2023, [2026] HKCA 315

On appeal from [2023] HKCFI 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 111 OF 2023

(ON APPEAL FROM HCAL 332/2021)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 31 March 2023 refusing to grant leave for the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 23 February 2021 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 November 2019 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India. He entered Hong Kong illegally on 1 January 2019, and was arrested by the police on 21 March 2019.  On 5 July 2019, he lodged a non-refoulement claim by written representations.  

3.  The applicant’s claim was based on a fear of being harmed or killed by his cousin and neighbour due to a land dispute.  The details of the applicant’s claim have been summarised by the Judge at [2] to [7] of the Judge’s decision (“the CALL-1 Form”)[1].   

4.  By a Notice of Decision dated 29 November 2019 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board against the Director’s Decision.  After an oral hearing on 17 April 2020, the Board dismissed the appeal by the Board’s Decision, which covered all applicable grounds for non-refoulement protection.  The Board accepted the applicant’s claims in respect of the land dispute and that he had been assaulted and threatened by members of the family who owned the disputed land that adjoined his cousin’s farmland, and that there is a real risk that the applicant would suffer mistreatment upon his return to his “home area” (see Board’s Decision, [76]). 

6.  However, the Board also found that notwithstanding this risk, there is no evidence that there is state involvement or that state actors would play a part should the risk materialise (see Board’s Decision at [66]).  Importantly, the Board found that adequate state protection and suitable options of internal relocation were available to the applicant to minimise the risk of harm (see Board’s Decision at [78]-[81], [89]). 

7.  As the risk of harm was confined to the applicant’s “home area”, the Board concluded that a healthy, able-bodied man of 24 years old (at the time of the hearing) with familial support such as the applicant could reasonably relocate internally to cities such as Bangalore, Chennai or Mumbai in order to minimise or mitigate against the risk of harm, should it materialise. 

8.  Accordingly, the applicant’s appeal was dismissed.

The Judge’s decision

9.  The applicant filed a Form 86 on 11 March 2021, seeking to judicially review the Board’s Decision.  The applicant’s grounds for review, as summarised by the Judge at [12] of the CALL-1 Form, were:

“(1) Procedural unfairness in that the Board’s decision to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(3) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(4) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(5) That in dismissing the Applicant’s appeal/petition the Adjudicator failed to conduct any analysis of the supporting documents or the risk of violation to the Applicant’s right to life under BOR 2; and

(6)     That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information that resulted in groundless speculations in the decision.”

10.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant the applicant leave to apply for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [17] of the CALL-1 Form:

“13.   These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of information were unofficially recognized or outdated, or how did the Board or Adjudicator act in a procedurally unfair manner or fail to conduct proper analysis as to the Applicant’s BOR 2 Claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, nor do I find any merits in his intended application 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 or properly identified by the Applicant at the hearing of his application.

14.     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.

15.     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.

16.     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.

17.     For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

11.  In the Notice of Appeal filed on 11 April 2023, the applicant set out his grounds, which (insofar as relevant to the Board’s Decision and the Judge’s Decision) are in gist as follows:

(1)     the Board and the Judge failed to properly consider the element of “state acquiescence” in his case;

(2)     the Board failed to “make sufficient [enquiries]” before reaching its Decision;

(3)     the Board failed to provide the applicant with the opportunity of “[arranging] relevant evidence”.

12.  In his written submissions lodged on 25 April 2023, the applicant referred to the well-established principles in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

13.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.  The applicant has in the Notice of Appeal failed to identify, any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

15.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

16.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

17.  Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his leave application by the Judge and in the processing of his non-refoulement claim.

18.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

19.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.