RE GURCHARN SINGH

CACV 67/2023, [2024] HKCA 334

On Appeal From [2023] HKCFI 373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 67 OF 2023

(ON APPEAL FROM HCAL NO 72 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the order of Deputy High Court Judge KW Lung (“the Judge”) dated 28 February 2023 ([2023] HKCFI 373) (“the Leave Decision”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 2 January 2019, whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 December 2017.

2.  On 3 March 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of India.  He entered Hong Kong as a visitor on 22 May 2015 and was permitted to remain until 5 June 2015.  He did not depart and has overstayed since 6 June 2015.  On 12 June 2015, he surrendered to the Immigration Department.  On 15 October 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his paternal uncle Rawel Singh.  Details of the applicant’s claim have been summarised by the Judge at [4] ‑ [5] of the Leave Decision.

4.  By a Notice of Decision dated 13 December 2017 (“the Director’s Decision”), the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds including the risk of torture[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  On 2 January 2019, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”).  The Board’s reasons were summarised by the Judge at [9] ‑ [11] of the Leave Decision:

“9. Before the Board, the applicant confirmed that his parents are still residing in their home in India [37]. He had no knowledge whether his family members encountered any problems since he came to Hong Kong [38]. Yet, the applicant also stated that he had no further information to provide. Despite the Board expressed its concerns over certain aspects of his claim, the applicant indicated that he had nothing more to say other than those in the written statements [43].

10. The Board highlighted the aforesaid concerns. For example, the disputed land was not under the applicant’s name. If Rawel was minded to do anything to take over the land, he could have harmed or killed the applicant’s father, the owner of the disputed land. Yet, there was no evidence of such act from Rawel [48]. Even if the Board accepted the applicant’s claim at its face value, it noted that he was only assaulted once and he had stayed home for another six months without any problems before he left [49]. It further noted that the claimed political group to which Rawel belonged was not in power when the applicant’s alleged incident happened. The group was elected to be the ruling party in early 2017 when the applicant lodged the non-refoulement claim. As result, the Board rejected his assertion that he would be at risk of harm for different political opinions [50].

11. For the above reasons, the Board did not accept the applicant’s claim and dismissed his appeal.”

THE JUDGE’S DECISION

6.  On 9 January 2019, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground of intended review was given by the applicant in his Form 86.  In his supporting affirmation, he only vaguely stated that he was not satisfied with the Board’s Decision and his problems still persisted in his home country.

7.  As the applicant did not request for an oral hearing, the Judge considered his application on paper.  On 28 February 2023, the Judge refused to grant leave to apply for judicial review for the following reasons:

“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

17. The reasons in paragraph 13 are not valid to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

THIS APPEAL

8.  In his Notice of Appeal filed on 3 March 2023, the applicant raised the following grounds of appeal:

“I am not satisfied with the Decision because its away form facts and reality which are related with my case. There is no any transparency in these Decision. Please accept my application and allow me to process further my case”. [sic]

9.  Pursuant to the directions of the Registrar of Civil Appeals dated 3 March 2023, the applicant lodged his written submissions on 7 March 2023.  In those submissions, he repeated the factual basis and procedural history of his non-refoulement claim, and vaguely alleged that there had been corruption in his home country and that his life would be threatened if refouled.

DISCUSSION

10.  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)).

11.  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.

12.  The applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

13.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.