MANJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 162/2024, [2024] HKCA 982

On Appeal From [2024] HKCFI 996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 162 OF 2024

(ON APPEAL FROM HCAL NO 1568 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 Bruno Chan (“Judge”)  on 19 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 5 June 2019.  In that decision, the Board upheld the further decision of the Director of Immigration (“Director”)  dated 7 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1984.  He attempted to enter Hong Kong on 15 September 2015 but was refused permission to land.  With the assistance of a legal representative, the applicant lodged a non-refoulement claim by way of written representation.  Subsequently, his formal non-refoulement claim form dated 14 October 2015 was submitted to the Immigration Department.  The applicant’s claim was made on the basis that if he returned to India, the family of his ex-wife would harm or kill him due to their marital disputes.  The factual background of the applicant’s claim was set out at [6.1] to [6.52] of the Director’s decision dated 10 November 2015.

3.  By notice of decision dated 10 November 2015, the Director assessed the applicant’s claim in relation to three applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk[3] and torture risk.[4]

4.  The applicant appealed to the Board against the Director’s decision dated 10 November 2015.  An oral hearing was held on 25 January 2016, during which the applicant initially gave evidence and answered questions from the Board.  However, the Board noted that the applicant announced that he was unwilling to answer any further questions from the Board, after it pointed out to the applicant that the Sarpanches (ie. Village heads)  must have decided on matters relating to the custody and maintenance of the applicant’s child before pronouncing on a concluded divorce, contrary to the applicant’s claim that they only pronounced their divorce.  The Board was prepared to ask further questions about the applicant’s visitation arrangements for his daughter, maintenance and/or upkeep of his daughter, and why his ex-wife’s family agreed to the arranged marriage if they were rich and powerful but the applicant was poor and uneducated.  But, the applicant chose not to answer any further questions and declined to make any comment about the written submissions of the Director or to make a final submission to the Board.

5.  In its decision, the Board found that there was no or no reliable evidence to show that the applicant’s ex-wife or her family members were public officials, that there was any state involvement, that the applicant suffered any physical and/or mental suffering of the requisite severity, or that the state was unwilling or unable to afford protection to the applicant.  The Board further found that it was not plausible that the applicant was divorced as alleged because there was no objective evidence to support that the Panchayats have the power to grant divorces, there were still the issues of dowry and child custody or maintenance not ruled upon, and the applicant did not inform the police that he was divorced contrary to his claim that his ex-wife relied on section 498A of the Indian Penal Code as a “married woman” against the applicant.

6.  Based on its findings above, the Board found that there was in fact no real risk of harm if the applicant returned to India, because there was no evidence of acquiescence or failure of due diligence on the part of the Indian government and the issue of internal relocation would not arise.  Therefore, 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 11 February 2016, the Board dismissed the applicant’s appeal in respect of the applicable three grounds and confirmed the Director’s decision dated 10 November 2015.

7.  By notice of further decision dated 7 April 2017, the Director further assessed the applicant’s claim in relation to an additional basis, ie. BOR 2 risk[5], and determined it against him.  The applicant had not submitted any additional materials for this assessment despite the Director’s invitation to him to do so by letter dated 22 March 2017.

8.  The applicant also appealed to the Board against the Director’s further decision dated 7 April 2017.  The Board decided to determine the petition without holding an oral hearing.  It considered the papers and compared the applicant’s new claims raised in the appeal against the claims previously provided by the applicant. It also noted that the applicant did not contest any of the findings of material facts in the Board’s earlier decision dated 11 February 2016.  The Board found that there was no evidence to show that the politician (Harmeet Singh Sandhu), who would allegedly help the applicant’s former father-in-law, had the power or intention of harming the applicant as alleged and that there had not been any physical and/or mental suffering of the requisite minimum level of severity.  The Board proceeded to consider the applicant’s BOR2 risk and found there was in fact no real risk of harm if the applicant returned to India, because there was no evidence that the applicant would suffer a real risk of ill-treatment attaining to the minimum level of severity or would be of any adverse interest to the government or authorities in India.

9.  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 5 June 2019, the Board dismissed the applicant’s appeal in respect of BOR2 risk and confirmed the Director’s decision dated 7 April 2017.

The Judge’s decision in the court below

10.  On 10 June 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 dated 5 June 2019.  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 rejected the decision of the Director as they disregarded his dangerous situation and annexed the Board’s decision dated 5 June 2019.  The applicant did not mount any challenge against the Board’s earlier decision of 11 February 2016.

11.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 19 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [13] to [18] of the Form CALL-1 as follows:

“ 13. On 10 June 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just asserted that the Board disregarded his dangerous situation but without providing any relevant details or particulars or elaboration as to how it did so, nor did he request any oral hearing for his application. As such, and 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 and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge of this second decision of the Board, or for that matter its earlier decision either.

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 Board already in its earlier decision rejected his non-refoulement claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 59 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his first appeal hearing as well as the material and information in the hearing bundle before the Board, and in the absence of any error of law or procedural unfairness in either process before the Board or in either of its decisions being clearly and properly identified by the Applicant, and as the factual basis of his claim even if real and even on his own case that his alleged risk arose from his marital disputes with his ex-wife’s family that simply did not engage the BOR 2 ground in its limited scope that I do not find any reasonably arguable basis for him to challenge the findings of the Board.

16. Furthermore, the fact is that it has also been correctly established by the Director in his earlier decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. 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.

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

Appeal to this Court

12.  On 26 April 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal was, essentially, that the court disregarded his dangerous situation.

13.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

14.  The applicant has not lodged any written submissions. 

Discussion

15.  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.

16.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s claims were not credible.  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.

17.  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.

18.  The applicant’s appeal is accordingly dismissed.