RE KARAMJEET SINGH

CACV 574/2018

[2019] HKCA 378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 574 OF 2018

(ON APPEAL FROM HCAL 1009 OF 2017)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Karamjeet SINGH, against the order made by Mrs Justice Campbell- Moffat (“Judge”) on 4 December 2018 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“Board”) given on 27 November 2017 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 9 September 2016 and a notice of further decision dated 2 June 2017 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of India now aged about 33, is a fear of attack by one Balvir KAUR (“Balvir”), the widow of his paternal uncle (“Uncle”), and her brothers and associates over a land dispute if he is returned to India.  Such alleged fear is said to arise out of the following circumstances:

(1)   The applicant was born and raised in Village Sekhupur, Batala City, District Gurdaspur, Punjab, India.  He worked as a farmer on family land from 2007 to 2015.

(2)   The applicant’s grandfather (“Grandfather”) had 2 sons, the applicant’s father (“Father”) and Uncle who had predeceased Grandfather.

(3)   In 2013, Grandfather transferred the ownership of his farmland in Village Sekhupur (“Land”) to Father, his sole surviving son.  

(4)   Balvir and her 5 brothers demanded to share in the Land. Grandfather refused.  They then attacked Grandfather by hitting him on the head with wooden sticks.  Grandfather did not survive the attack. 

(5)   The applicant reported Grandfather’s murder to the police in Sekhupur.  However, no action was taken.  This was because Balvir, though a housewife, was influential in Village Sekhupur (the applicant’s home village).  She had close connections with the police and a member of the Punjab legislative assembly from the Shiromani Akali Dal party (“SAD”).  One of her brothers, Dheera, was a member of SAD and was the village head while another brother was the head of the village council in Dhadyal, another village in Gurdaspur.

(6)   There was no other major incident in 2013 and 2014 until one day in April 2015 when the applicant was home alone, he was assaulted with wooden sticks by Balvir together with 8 to 9 people. The applicant could identify 3 to 4 of the assailants and they were Balvir’s brothers.  His left arm was broken in the attack.

(7)   The applicant reported the assault to the Sekhupur police but they only took a statement from him.

(8)   In around April to May 2015, the applicant moved to Delhi to stay with his maternal aunt’s husband for about 10 days. He next moved to Ludhiana and stayed with his friend there for about 5 days.  While in Ludhiana, the applicant was informed by his family that his enemies were still looking for him.

(9)   When the applicantreturned to Sekhupur, Balvir and her associates came a few times, sometimes with weapons, in order to threaten to kill him over the land dispute and because the applicant had reported Balvir to the police for killing Grandfather.

(10)   Then, in the 2^nd week of September 2015, Balvir filed a false report against the applicant, accusing him of trafficking in dangerous drugs.  The applicant was arrested by the police. He was released unconditionally on the next day after a close friend of his had paid a bribe of 10,000 Indian Rupees to the police.

(11)   The applicant’s said friend told him not to remain in India.  The applicant left India on 30 September 2015 for Hong Kong on his own Indian passport and did not encounter any problem during departure.

(12)   The applicant claimed that he had kept contact with his brother by phone twice a month after he came to Hong Kong. He was told that although Balvir was no longer looking for him, he would be in danger if he should return to India and Balvir should come to know about it.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant entered Hong Kong on 1 October 2015 as a visitor on a visa that expired on 15 October 2015.  He overstayed and surrendered to the Immigration Department on 19 October 2015.  The applicant lodged the NRF Claim by written representation on 10 March 2016.

Director’s Decision

4.  In processing the NRF Claim, the Director’s representative interviewed the applicant on 29 July 2016.

5.  The 1^st Director’s Decision covered torture risk[1], persecution risk[2] and “BOR 3” risk[3].  The Director found the NRF Claim to be not substantiated:

(1)   First, on the facts, the applicant has not adduced any objective material to substantiate Balvir’s alleged connection with the SAD.  There was no reason why Balvir and her brothers and associates needed to specifically target the applicant who is not the owner of the Land.  They would not get the Land just by harming the applicant.  The past altercations were in any event low in intensity and frequency.  The applicant chose to return to Sekhupur in May/June 2015 after being away for 15 days.  He remained safe there until his departure in late September 2015.  Father is the current owner of the Land.  He and the applicant’s 2 older brothers (who together with the applicant will be the legal heirs of the Land after Father passes) were still living in India.  It was not suggested that they had been harassed/ill-treated by Balvir or her brothers or associates.

(2)   Second, the objective country of origin information shows that reforms in the Indian police have been and are ongoing.   The availability of state protection would negate or lower the level of risk (if any).

(3)   Third, many reasonable internal relocation alternatives are available to an able-bodied adult like the applicant. 

6.  Following the 1^st Director’s Decision, by a letter dated 12 May 2017, the applicant was invited to submit additional relevant facts on or before 26 May 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable grounds.  The applicant did not respond to such invitation.  In the absence of additional information, by the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[4].

Appeal to Board and Board’s Decision

7.  The applicant appealed to the Board.

8.  The Board conducted a rehearing of the NRF Claim on 17 November 2017, at which the applicant testified and answered questions by the Board with the assistance of a Punjabi interpreter.

9.  The Board’s Decision covered torture risk, persecution risk, “BOR 2” risk[5] and “BOR 3” risk.  The Board found the applicant not a credible witness and rejected his account of the circumstances that he claims led to his decision to leave India for Hong Kong.  Apart from the lack of reliable supporting evidence, the applicant was unable to remember significant aspects of his claim such as Grandfather’s death. He was unable to say who struck him in the attack at his home or whether Balvir’s brothers were amongst the 8 or 9 men accompanying Balvir.  He could not plausibly explain why he alone, and not Father who is the owner, should have been targeted in the alleged dispute over the Land.  Nor could he offer any reason why Balvir trumped up against him the drug charge (of which there was no supporting documents).  On the other hand, the applicant made new allegations never raised before.  He claimed to have received 5 to 10 telephone calls in which one of Balvir’s brothers said, “Come back and see what happens to you.”  When asked why he previously said he had not encountered any problem in Delhi, Ludhiana or Moga, the applicant simply claimed that he had forgotten to mention these threatening phone calls.  Even if the applicant had been able to show that he faced a real or genuine risk of harm as claimed, the Board would have found that such risk was confined to the local area where he had lived.  The Board did not accept that Balvir and her brothers and associates would have the influence or ability to pursue the applicant beyond the bounds of his immediate home area.  Even if Balvir should still retain an interest in pursuing the applicant more than 2 years after his departure from India, any such risk could be avoided or mitigated if the applicant were to relocate within India.

Application for leave for judicial review and Judge’s Decision

10.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1009/2017 on 23 November 2017 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision.  The Form 86, however, did not state any grounds on which relief was sought.  The supporting affirmation filed on 30 November 2017 did not say much either, only that the Board’s Decision was not fair.

11.  As the applicant did not request an oral hearing, the Judge considered the application, and refused leave, on the basis of the materials before her.  Her reasons can be found in [9]-[12] of the Call-1 form dated 4 December 2018, [2018] HKCFI 2281:

“9. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

10.   There were no grounds of review.  The Applicant asks for a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

11.   Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.    I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

12.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Appeal to Court of Appeal and grounds of appeal

12.   By a notice of appeal filed herein on 10 December 2018, the applicant appealed against the refusal of leave for judicial review on these grounds (“Grounds” collectively), which criticise the Judge for:

(1)   failing to consider properly for his fear or to conduct sufficient enquiry into the relevant country of origin condition;

(2)   failing to adopt a proper structured approach in relation to credibility or indicating that a reasoned, considered approach was taken in revaluating the material (citing Nazir Qaisar v Torture Claims Appeals Board, HCAL 546/2017).

(3)   failing to consider the psychological impact of the facts raised as part of his claim including the threats and false charge of trafficking in dangerous drugs;

(4)   failing to take account of the lawful approach in keeping with the relevant high standards of fairness (citing Y v Secretary for the Home Department [2006] EWCA civ 1223); and

(5)   failing to consider that Grandfather was killed and that the applicant was targeted by his aunt who was a powerful woman with influence.

13.  The applicant repeated the Grounds in his skeleton submission dated 22 February 2019, stressing the importance of giving adequate consideration to his position and experiences, which should be assessed against the background information of the country of origin.

14.  The applicant appeared in person at the hearing of the appeal on 25 March 2019.  He had nothing useful to add to grounds of appeal or skeleton submission.

Court of First Instance’s role in judicial review in non-refoulement claim

15.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

16.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

17.  All the Grounds go to the assessment of the NRF Claim as questions of fact.  The question whether the applicant would be at risk if he is returned to India is a question of fact within the province of the Board (after the Director).  The Board heard the applicant.  It provided detailed reasons in [48]-[87] of its decision, explaining why it did not accept the applicant’s testimony of the circumstances alleged by him as giving rise to a risk of harm at the hands of Balvir.  Those reasons cannot be faulted.  The applicant did not in the Form 86 point to any error of law, procedural unfairness or irrationality in such finding by the Board.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed. 

18.  The applicant did not in the notice of appeal or his submission before us identify any error of law by the Judge, any relevant matter that she had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

Disposition

19.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.