G C KHUMAN SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 98/2021

[2021] HKCA 1499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 98 OF 2021

(ON APPEAL FROM HCAL NO 589 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1.  On 9 March 2021, Deputy High Court Judge C P Pang dismissed the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1]. The applicant lodged a Notice of Appeal against the said decision of the judge on 12 March 2021. He consented to the disposal of this appeal on paper by the Court of Appeal.

2.  The applicant is a national of Nepal.  He is 31 years old.  On 11 December 2014, he was arrested by the police in Hong Kong for being an illegal immigrant.  He claimed that he sneaked into Hong Kong by boat on 8 December 2014.  On 14 December 2014, he lodged a non-refoulement claim on the basis that he will be harmed or killed by the customers of his restaurant who refused to settle the bill after having dinner in his restaurant.   

The decisions of the Director and the Board

3.  By a Notice of Decision dated 22 April 2015 (the Director’s first decision”), the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on the grounds including torture risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

4.  The applicant was not harmed or injured in the alleged incidents.  The Director considered that the past ill-treatment does not attain a minimum level of the requisite severity and the low intensity and frequency of the past ill-treatment reflected that the customers had no intention to kill the applicant.  The level of risk of harm from customers upon the applicant’s return is assessed to be low.  The Director further found that the applicant’s problem is a private dispute which does not fall within the definition of persecution.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

5.  The applicant appealed against the Director’s decision to the Board on 27 April 2015.  The appeal was considered on the assumption that the applicant’s contentions were to be accepted in full.  The Board considered that it was unnecessary to conduct an oral hearing as it would not have enhanced the applicant’s case.  The Board inferred that the gangsters were not seriously hunting down the applicant to kill him from the fact that the applicant had stayed in his friends’ respective homes in Nepal without any incident.  The Board also found no evidence to suggest a lack of reasonable state protection, especially when the applicant had received reasonable state protection from the police after he sought assistance in one of the incidents.  The Board held that the events described by the applicant have not disclosed a real or existing risk of harm to the applicant in Nepal and there is nothing to stop him from relocating to other parts of Nepal should he feel not comfortable to go back to Sandhikharka of Arghakhanchi.  Thus, the Board rejected the appeal on 9 March 2017.

6.  By a Notice of Further Decision dated 7 April 2017 (“the Director’s further decision”), the Director rejected the applicant’s claim on BOR 2 risk^[5] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.

7.  The applicant appealed against the Director’s further decision.  The Board considered that an oral hearing would not advance the applicant’s case as the applicant did not raise any new information or additional grounds. Therefore, the Board dealt with the appeal on paper.  The Board found that the applicant’s evidence does not show that he would reasonably be at risk of serious harm in his home country from the customers, let alone a risk of deprivation of life.  The Board further considered there is no evidence to show that the applicant could not receive reasonable state protection from the police in his town or in his country.  Thus, the Board rejected the appeal on 21 February 2019 (“the Board’s second decision”). 

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 1 March 2019 to seek leave to apply for judicial review against the Board’s second decision. He did not put forward any specific grounds for his intended challenge but only reiterated that his life will be in danger if he goes back to his home country.

The judge’s decision

9.  DHCJ C P Pang considered the leave application on paper as the applicant did not request for an oral hearing.  The judge considered the applicant failed to show that the Board was unfair or unreasonable in the public law sense.  The judge also held there is nothing amiss in the analysis in the Board’s second decision nor is there any error of law, irrational finding or procedural unfairness. The judge concluded that the applicant is unable to show that he has any reasonable prospect of success in his intended judicial review so he dismissed the leave application on 9 March 2021.

Grounds of appeal

10.  The applicant only stated that he is not satisfied with the judge’s decision without giving any specific grounds of appeal in the Notice of Appeal filed on 12 March 2021.  He did not set out proper grounds of appeal or lodge any written submissions despite the directions made by the Registrar of Civil Appeals on 6 May 2021 requiring him to file a supplemental notice of appeal setting out proper grounds of appeal and to lodge written submissions.

Legal Principles

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.  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 scrutinizing 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 Country of Origin Information 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.

13.  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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

14.  In the present appeal, the applicant has not put forward any viable ground to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  The applicant has also failed to adduce any evidence to refute the Board’s findings.  As the appeal is devoid of merit, we dismiss it accordingly.

[1]  [2021] HKCFI 508

[2]  As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3]  This refers to 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 and its 1967 Protocol.

[5]  This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).