SUKHPAL SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 23/2024, [2024] HKCA 1043

On appeal from [2024] HKCFI 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 23 OF 2024

(ON APPEAL FROM HCAL NO 1919 OF 2023)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  On 9 January 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 18 January 2024.

2.  The applicant is an Indian national. He last arrived in Hong Kong on 9 August 2005 as a visitor and subsequently overstayed. He was arrested by the police on 20 August 2006. He was released on recognizance on 12 October 2006 but was later re-arrested by the police for various offences. He was sentenced to imprisonment for his conviction of offences including theft, possession of dangerous drugs, trafficking in dangerous drugs, claiming to be a member of triad society and inviting a person to become a member of triad society.

3.  He first made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 22 August 2006. His claim was treated as withdrawn on 6 March 2013 as he did not complete and return the Torture Claim Form. He lodged a non-refoulement claim on 25 November 2013. His claim was made on the basis that he will be harmed or killed by the Indian Police authorities because he was accused to be involved in terrorist activities in 1999 and he also feared to be harmed by Dalip’s family as they considered that he assisted the elopement of Dalip’s daughter with his friend in 2004.

4.  No further action was taken in processing the applicant’s claim as he failed to provide the Immigration Department with his residential address or notify the department of his change of address. The applicant requested to re-open his claim and his request was allowed on 2 June 2022.

The decision of the Director

5.  By a Notice of Decision dated 19 July 2022, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

6.  Taking into consideration the nature and intensity of the past ill-treatment inflicted by Dalip’s family, the extent of injuries the applicant had suffered, the absence of medical treatment required and his later normal way of life, the Director considered that the ill-treatment has not attained a minimum level of severity. The Director also considered that the applicant’s evidence has not established any substantial ground to believe that there will be foreseeable and real risk of harm from Dalip’s family upon his return to India.

7.  Besides, the Director found that the applicant was not bothered by the police during his stay in Kale Ki and Smalsar for the period between 2000 and 2004. He was issued a national passport and could depart from India without hindrance. The Director found that there is nothing to show that the police of India have been targeting the applicant nationwide. The Director also found that the Indian authority did take action against police officers for their wrongdoings and the availability of internal relocation alternatives further lowers or negates any perceived risk.

The decision of the Board

8.  The applicant was late for nearly a year in filing his appeal against the Director’s decision. The Board was not satisfied that the applicant has satisfactorily explained why the application was late and that the applicant has exercised all due diligence to make the application within the required time but failed to do so due to circumstances beyond his control. Thus, the Board rejected the application for late filing on 17 August 2023.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 25 October 2023 to seek leave to apply for judicial review against the decision of the Board. His grounds for his intended challenge have been summarized in §18 of the judge’s decision.

The judge’s decision

10.  The applicant attended the hearing before the judge on 29 November 2023. As he indicated he has applied for legal aid, the judge adjourned the hearing to 11 December 2023. The applicant acted in person in the adjourned hearing as his legal aid application was refused. The judge found that the applicant’s complaint against the Board’s failure to hear his explanation is untenable, as section 37ZT(2) of the Immigration Ordinance requires the Board to decide whether the late filing of the notice of appeal should be allowed without a hearing. The judge further held that the Board had duly considered the applicant’s explanation for his delay and was entitled to take the view that the applicant had failed to give acceptable reasons for his delay. The judge concluded that the applicant has no valid reason to challenge the decision of the Board. As the applicant did not have any realistic prospect of success in his proposed judicial review, the judge refused the leave application on 9 January 2024.

Grounds of appeal

11.  In the Notice of Appeal filed on 18 January 2024, the applicant stated the following grounds of appeal:

(1)  The Director, the adjudicator and the court have failed to take the applicant’s argument into account or that the Director has failed to give sufficient weight to such argument before reaching the decision.

(2)  The applicant’s points were ignored and the decisions were not transparent. The situation of his country is much different.

(3)  The decisions are unreasonable and unfair. The right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. It must be protected from extrajudicial killings that he may face if he is deported to his country.

(4)  The adjudicator was procedurally improper and unfair when assessing whether to accept the applicant’s explanations or not and unreasonably require the applicant to respond to questions that he was not in a position to do so.

(5)  The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director, whereby the Director and the adjudicator were required to give reasons justifying their decisions;

(6)  The judge was wrong for not having applied the principle of irrationality to the decisions made by the Director and the Board, which have significantly relied on source of news that is not officially recognized, or is simply hearsay.

(7)  Torture and deaths are common in police custody in India and the police would just give support to those who bribe them. It is impossible for him to go back to work. Even if he were to file a report to the police, the police would just inform those powerful people of the same.

12.  The applicant has submitted a written consent for the appeal to be disposed of on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 18 January 2024 requiring the applicant to lodge skeleton argument on or before 1 February 2024. The directions provided that in the event the applicant fails to lodge skeleton argument by the prescribed deadline, he shall be deemed to have abandoned his right to rely on written submissions and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials. The applicant has not lodged any written submissions by the prescribed time in this appeal.

Legal principles

13.  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.

14.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

Analysis and disposition

15.  The applicant failed to identify the specific argument, point and/or situation he referred to under grounds (1) and (2). Thus, these grounds are just bare assertions without particulars or evidence in support.

16.  As for ground (3), the applicant did not adduce any evidence to support the alleged risk of extrajudicial killing upon his return to India or to refute the finding of the Director.

17.  Grounds (4) and (7) are not related to the judge’s decision at all and are just bare assertions without evidence in support.

18.  The applicant failed to show that the judge was wrong as alleged under grounds (5) and (6). Contrary to what is stated under ground (5), both the Director and the Board did give sufficient reasons in their decisions. As for ground (6), the applicant did not point out the particular source of news which was relied on by the Director and the Board that he is complaining about. In fact, the Board did not rely on any news in its decision at all.

19.  For the above reasons, the applicant’s grounds of appeal are devoid of merit. We therefore dismiss his appeal.