GURBHAL SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 557/2024, [2025] HKCA 785

On Appeal From [2024] HKCFI 3469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 557 OF 2024

(ON APPEAL FROM HCAL NO 2064 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 10 December 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 9 May 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 14 September 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1994. He last entered Hong Kong illegally from Mainland China on 15 August 2016 and was arrested on the same day. He submitted his intention to lodge a non-refoulement claim on 16 August 2016 and submitted his non-refoulement claim form dated 18 July 2018 thereafter. The applicant’s claim was made on the basis that if he returned to India, his two uncles would harm or kill him due to their land dispute. The factual background of the applicant’s claim was set out at [4] to [29] of the Board’s decision.

3.  By notice of decision dated 14 September 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him. Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 3 April 2019, during which the applicant confirmed to adopt the evidence in the hearing bundle but did not give evidence. On credibility, the Board found the applicant’s claim amounted to unreliable and questionable evidence which it did not find credible. On the totality of the evidence, the Board did not accept that the applicant had been assaulted, threatened or ill-treated by his two uncles over a land dispute in India.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to India. It found there was in fact no real risk of harm if the applicant returned to India, because even on the applicant’s claim, the alleged ill treatment did not reach the required level of severity, the uncles were acting in their personal and private capacities, there was no state involvement, reasonable state protection would be available to him, and internal relocation to big cities in India would be a viable option.

6.  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 9 May 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 19 July 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. In the accompanying affirmation, he stated that there was a lack of adequate legal and language assistance at every stage of his non-refoulement claim resulting in procedural unfairness (in particular, no translation of the decisions of the Director and of the Board was provided to him), that the hearing bundle from the Director was only given to him a “few days” or a “few weeks” before the appeal hearing, and that the Board failed to take into account of his personal circumstances in coming to its findings.

8.  The Judge considered the application on the basis of the documents and the submissions of the applicant at the oral hearing held on 15 November 2024. On 10 December 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [14] to [19] of the Form CALL-1 as follows:

“ 14. For his complaint under Ground (1), the Applicant did not produce any documentary evidence such as the envelope or covering letter that accompanied the hearing bundle to corroborate his assertion that it was provided to him a few weeks before his appeal hearing, that in any event a few weeks prior to the hearing does not in my view justify any criticism from the Applicant, while most of the documents such as his NCF and record of his screening interview as well as the Director’s decision had in fact earlier already been provided to him when he was still legally represented by lawyer from DLS, and that he never raised any such issue to the Board during his appeal hearing when he was able to make full and proper representation of his claim to the Board without any problem and with the assistance of an interpreter. In the circumstances I do not find any merits in this complaint of the Applicant.

15. As for his complaint of Ground (2), it is just some bare and vague assertion of the Applicant without any necessary or relevant details or particulars or elaboration as to what findings by the Adjudicator were made on presumptions without taking into account of the Applicant’s personal circumstances, nor was the Applicant able to do so at the hearing of his application. As such I do not find this complaint reasonably arguable for his intended challenge either.

16. 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.

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

18. 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.

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

Appeal to this Court

9.  On 23 December 2024, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were that he would face hardship if refouled, that the Board relied on sources that were not officially recognized or outdated, and that the Board made groundless speculations based on sources of information that were not credible.

10.  As the applicant did not lodge any written submissions, the scheduled hearing of his appeal was vacated pursuant to the previous directions of the Court. We shall accordingly determine the appeal on the basis of the available documents and materials.

Discussion

11.  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.

12.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it found the applicant’s evidence not credible. Even on his own case, the applicant’s alleged ill treatment did not reach the required level of severity, the uncles were acting in their personal and private capacities, there was no state involvement, reasonable state protection would be available to him, and internal relocation to big cities in India would be a viable option. The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision.

13.  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.

14.  The applicant’s appeal is accordingly dismissed.