RE BALKAR SINGH

CACV 450/2018

[2019] HKCA 126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 450 OF 2018

(ON APPEAL FROM HCAL NO. 166 of 2018)

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J U D G M E N T

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Hon Andrew Chan J (giving the Judgment of the Court):

The appeal

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 3 September 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 26 January 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 December 2016 rejecting his non-refoulement claim.

The applicant

2.  The applicant is an Indian national.  He entered Hong Kong on 6 May 2015 and was permitted to stay as a visitor until 20 May 2015.  He did not depart and overstayed.  On 21 May 2015, he surrendered to the Immigration Department.  He was later convicted of overstaying and sentenced to 2 weeks’ imprisonment suspended for 3 years.  Subsequently, on 24 November 2015, he lodged a non-refoulement claim and was released on recognizance.

3.  On 15 March 2016, the applicant was arrested by immigration officers for taking employment unlawfully.  He was convicted and sentenced to 2 months’ imprisonment.  In addition, the two weeks’ suspended sentence was activated.  On 25 May 2016, he was discharged from prison and transferred to the Castle Peak Bay Immigration Centre on the same day and later released on recognizance.

4.  The basis of the applicant’s non-refoulement claim was that if he were to return to India, he would be harmed or killed by his elder brother and his associates because of a family land dispute.

The claim

5.  The applicant’s background and the details of his claim were set out in [7] to [37] of the Director’s Notice of Decision dated 7 December 2016, and [8] and [34] to [58] of the Board’s decision dated 26 January 2018.  On a brief account, the applicant said his father owns a farmland in their home village in Punjab province.  Under the local customary law, the farmland would pass to him and his elder brother, Jaskar, in equal shares upon the death of their father.  Jaskar had repeatedly demanded him to surrender his share but he refused.  In February 2015, Jaskar and some gangsters attacked him and threatened to kill him.  Jaskar worked for Babbi, who was a member of the Legislative Assembly in the local area and was affiliated with the Indian National Congress Party, an influential political party in India.  Fearing for his safety, the applicant left India and came to Hong Kong via Macau.  

The decisions of the Director / the Board

6.  By a Notice of Decision dated 7 December 2016, the Director rejected the applicant’s claim on all applicable grounds namely, the torture risk[1], the BOR 2 risk[2], the BOR 3 risk[3] and the persecution risk[4].  The applicant appealed to the Board.  A hearing was held on 31 October 2017.  By its decision dated 26 January 2018, the Board dismissed the appeal and affirmed the Director’s decision.   

The Judge’s decision

7.  The applicant filed a Form 86 on 5 February 2018 seeking leave to judicially review the Board’s decision.  In the supporting affirmation filed on the same day, he set out his proposed grounds for judicial review, which were essentially complaints that:

(1)  The decisions of the Director and the Board were wrong, unreasonable and unfair.

(2)  The Board did not give him sufficient time and chance to arrange for relevant evidence to support his claim and to prepare for the appeal / petition.

8.  At the applicant’s request, an oral hearing was held on 21 June 2018 to hear the leave application.  Having considered the applicant’s proposed grounds for judicial review, the Judge concluded that they were unarguable and refused to grant him leave to apply for judicial review.  The Judge set out his reasons in [28] to [36] of the Form CALL-1 dated 3 September 2018, [2018] HKCFI 1995:

“28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

30. The Adjudicator considered the Applicant faced BOR3 risk and BOR2 risk but no torture risk and persecution risk. However, he found it was not unreasonable or unsafe for the Applicant to relocate himself to other parts of India because the BOR3 risk and BOR2 risk were localised to the Applicant's home area, or at most within Punjab only. The Adjudicator did not accept that Jaskar could be assisted by Babbi or INC to track down the Applicant in the vast country of India. Therefore, the Applicant was not entitled to non-refoulement protection. The Adjudicator had duly considered relevant COI and the Applicant's situation to come to such finding. It was not Wednesbury unreasonable.

31. The Applicant accused the Adjudicator failed to give him sufficient time and chance to arrange evidence.

32. There was no record of the Applicant’s having asked for time or adjournment before the Adjudicator to gather proofs from India. In court, the Applicant could not specify what proofs he was seeking to obtain then. He merely said ‘whatever I could provide to prove my claim’. That was vague.

33. The Applicant was asked why he could not have got hold of what he wanted earlier. He replied his family members in India could not help him and his only friend there was out of the country. That was unconvincing.

34. I do not accept the Applicant had been denied of any reasonable opportunity to gather proofs to substantiate his claim. I am sure the Applicant had been given reasonable and sufficient opportunities to prove his case fully.

35. The Applicant complained the Adjudicator had not considered his claim carefully and had rendered unreasonable and unfair decisions against him. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his finding, conclusion and decision, which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed he was acquainted with the facts and the law. He had considered the Applicant’s case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

36. The Applicant’s complaints are not reasonably arguable.  He has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant him leave for the review.”

Grounds of appeal

9.  The applicant filed the Notice of Appeal dated 12 September 2018 to appeal the Judge’s decision.  He set out the following grounds of appeal:

(1)  He would face hardship if he were to return to his home country. 

(2)  The Board had significantly relied on the source of news which was not officially recognized, or was simply hearsay. 

(3)  The Board had relied on some cases which were outdated and had failed to consider the dramatic changes.  The lack of credible source of information had resulted in its making groundless speculations. 

Discussion

10.  At the hearing, the applicant confirmed that he has nothing to add to his written submission.  The present appeal is against the decision of the Judge in refusing leave to apply for judicial review.  Yet, the grounds of appeal do not point to any error in the decision of the Judge.  The applicant’s grounds of appeal contain mere repetitions of his claim and vague assertions that the Board had not properly assessed his claim.  These are not proper grounds.

11.  In his written submission dated 11 December 2018, the applicant merely quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non-refoulement claim.

12.  The applicant’s major complaints are directed at the decision of the Board which had already been addressed by the Judge. We have looked at the decisions of the Board and of the Judge and the reasons they gave for their decisions. We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s decision.

Disposition

13.  For the reasons given above, we conclude that there are no merits in the appeal.  Accordingly, we dismiss the appeal.