RE DEEP SINGH

CACV 163/2018

[2018] HKCA 464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 163 OF 2018

(ON APPEAL FROM HCAL 744/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Josiah Lam dated 11 May 2018 refusing leave to apply for judicial review.  The applicant’s intended application for judicial review is against the decision of the Torture Claims Appeal Board dated 27 September 2017 rejecting the applicant’s appeal against the determinations of the Director of Immigration dated 12 May 2016 and 31 July 2017 respectively.

2.  On 15 June 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions.  He also directed that if such submissions were not lodged within the prescribed time (ie not less than 28 days before the hearing), the applicant would be deemed to have waived his right to have an oral hearing and elected to have this appeal disposed of on paper.  For the court’s approach towards a failure to lodge written submissions: see Re Manjit Kaur [2018] HKCA 247, para 10; Re Miha Md Limon [2018] HKCA 278, para 12; Re Ali Arshad [2018] HKCA 304, para 10; and Re Sk Sarfaraj [2018] HKCA 307, para 10.

3.  On 19 June 2018, the hearing of this appeal was fixed for 25 July 2018.  When the hearing date was fixed, the applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

4.  Despite the directions and reminder, the applicant did not lodge any skeleton submissions.  Accordingly, the hearing date was vacated, and we now deal with this appeal on the basis of the material before us.

Background

5.  The applicant is an Indian national.  He entered Hong Kong on 25 July 2014 with permission to remain as a visitor until 8 August 2014.  After the expiry of his permission to remain, he overstayed illegally.  He was arrested by the police on 13 August 2014. He lodged his non‑refoulement claim on 15 August 2014.

6.  The applicant’s non‑refoulement claim was based on the fear that if he were to return to India, he would be harmed, or even killed by his paternal uncle because of a land dispute.  It was the applicant’s case that his father and his uncle inherited a piece of land from his grandfather.  His uncle wanted to kill him because his uncle also wanted to have that part of the land belonging to his father.

7.  By a notice of decision dated 12 May 2016, the Director of Immigration rejected his claim.  The director was not satisfied there were substantial grounds for believing that the applicant’s perceived risk of harm upon return to India was real or foreseeable.  The director considered that the past ill‑treatments inflicted by the applicant’s uncle or other assailants on him did not attain the minimum level of severity required by law.  The director was also unimpressed by the applicant’s story because, on his story, his uncle should have targeted his father, not him, as it was his father who co‑owned the land.  The director also considered that the availability of state protection and the viability of internal relocation would lower the perceived risk of harm.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

8.  By a notice of decision dated 31 July 2017, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and determined it against him.

9.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 21 August 2017. The board doubted the applicant’s intention to seek protection in Hong Kong. The board considered that, if the applicant’s story was true, his uncle should not have only wanted to kill the applicant, but also his whole family, including his father and brother.  The fact that the applicant’s uncle had no intention of killing his father and brother made his story hard to believe. The board also shared the director’s view that the injuries suffered by the applicant did not attain the minimum level of severity required by law.  The board took into account the fact that, save for two incidents, the applicant failed to report the assaults to the police.  The board agreed that state protection was available to the applicant, and found that there was no foreseeable, real, personal and present risk of the applicant being ill‑treated if he was refouled to India.  The board dismissed his appeal on 27 September 2017.

The deputy judge’s decision

10.  The applicant filed the form 86 on 9 October 2017. While the form 86 contained no grounds for seeking relief, the applicant advanced the following grounds in his supporting affirmation dated 9 October 2017:

“(1) Irrationality – failure to consider the concept of state acquiescence;

(2) Procedural impropriety – insufficient inquiry; and

(3) Failure to provide adequate reasons as to decision made.

[(4)] Procedural impropriety/unfairness (failure to investigate into the country of origin information of India);

5) Irrationality (failure to place weight on relevant information and/or selectively placing weight on irrelevant information);

6) Irrationality (failure to consider a consistent system of human right violations);

(6) Irrationality (failure to consider if state protection exists in Indian);

(7) Irrationality (placing weight on irrelevant matters, or on inaccurate or incorrect fact(s));

(8) Procedural impropriety (failing to call for psychological and/or psychiatric reports and/or evaluations);

(9) Procedural impropriety (applying the incorrect standard of proof);

1, No reasonable basis for rejecting my caliam credibility;

2, Failure to consider the extended form state acquiescence;

3, Failure to fully consider the COI reprts in assessing risk to the I Deep Singh..

4. Irregularity of the decision‑maker being a different person than the interviewing officer;

5, No proper basis for consideration of internal relocation;

My life fear if I return my home country my life risk or receiving death.”
(sic)

11.  The applicant did not request an oral hearing for his leave application.  After summarising the facts and considering the decisions of the director and the board, the deputy judge gave the following reasons in refusing leave to apply for judicial review in the CALL-1 form dated 11 May 2018:

“Discussion

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

31. 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’.

32. The Applicant put forward a number of grounds but they lacked specifics.

Ground (a): failure to consider state acquiescence

33. Both the Director and the Adjudicator had duly considered the issue of state acquiescence and found that there was no state acquiescence of any form in the Applicant’s case.

Ground (b): insufficient enquiry

34. The Applicant's case was a simple one. Both the Director and the Adjudicator had made sufficient inquiry in the Applicant's claim.

Ground (c): inadequate reasons given

35. The Director's decision dated 12 May 2016 and the Board's decision dated 27 September 2017 were clear enough and contained adequate reasons for the findings, conclusions and decisions therein.

36. The Director’s further decision dated 31 July 2017 was relatively brief. However, it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 12 May 2016, which contained a detailed analysis of the Applicant's case. The Applicant had not submitted additional facts for the Director's consideration of BOR2 risk, which was only a further issue to be considered by the Director on the basis of the same facts and evidence already analysed carefully in the previous decision dated 12 May 2016. It is sufficient for the Director to express as he did in his further decision dated 31 July 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non‑derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 12 May 2016.

Ground (d): failure to investigate into relevant COI

37. The immigration officer had referred sufficiently to relevant COI in her report dated 12 May 2016. As said, she need not repeat that in her further report dated 31 July 2017.

38. The Adjudicator had also duly considered the various COI reports referred to by the immigration officer.

Ground (e): failed to place weight on relevant information and/or selectively placed weight on irrelevant information

39. The Applicant failed to point out what relevant information or irrelevant information he was referring to. There is no substance in this ground.

Ground (f): failure to consider there was a consistent system of human rights violations in India

40. The alleged dispute between his family and Joginder was a private dispute over land. There was no element of state instigation; there was no state acquiescence of any form. Whether there was a consistent system of human rights violations in India is irrelevant to the Applicant’s case.

Ground (g): failure to consider if state protection really existed in India

41. Both the Director and the Adjudicator had given due consideration to the circumstances in India and concluded that reasonable state protection was available to the Applicant.

Ground (h): placing weight on irrelevant matters and inaccurate or incorrect facts

42. The Applicant failed to point out what irrelevant matters and inaccurate or incorrect facts he was referring to. This ground is vague and has no substance.

Ground (i): failure to call for psychological or psychiatric reports

43. The Applicant failed to show why psychological or psychiatric reports were necessary in his case. There is no substance in this ground.

Ground (j): multi allegations

44. The applicant complained that the decision-maker: applied the incorrect standard of proof; had no reasonable basis for rejecting his evidence; failed to consider extended state acquiescence; failed to consider the COI reports in assessing risks; had no proper basis to consider the issue of internal relocation; and being a different person from the interviewing officer.

45. There is no evidence that the Director or the Adjudicator applied the wrong standard of proof.  As said in previous paragraphs, the Director and the Adjudicator had considered relevant COI duly. The immigration officer had considered the issue of internal relocation. She concluded reasonable internal relocation alternatives were available to the Applicant.  Her report shows that she had proper basis for that conclusion.  On the other hand, the Adjudicator did not consider the issue of internal relocation. He need not as he found there were no risks that warranted non‑refoulement protection.  The immigration officer and the Adjudicator had concluded on reasonable arguments that there was no state acquiescence of any form. Lastly, the allegation that the decision-maker was a different person from the interviewing officer is simply not true.

46. None of Grounds (a)-(j) is substantiated.

47. In my judgement, both the Director and the Adjudicator had proper basis for their individual findings, conclusions and decisions which were not Wednesbury unreasonable.  They made no errors of law and there was no procedural unfairness.  There is no substance in the Applicant’s complaints against the Director or the Adjudicator.  Each 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 reports of the Director and the Adjudicator respectively showed that they were acquainted with the facts and the law.  They considered the Applicant's case carefully and applied the law correctly.  They were entitled to render those findings, conclusions and decisions which were all reasonable.  The Director and the Board had adhered to the high standards of fairness required of the Applicant’s non‑refoulement claim.

Conclusion

48. The Applicant's complaints are not reasonably arguable either against the Director or the Board.  He has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant him leave for the review.”

The appeal

12.  In his notice of appeal filed on 17 May 2018, the applicant stated:

“By the time the director’s decision was made, I have already lodged the appeal at the Torture Claims Appeal Board (‘TCAB’), which was an appeal against their decision under the 3 grounds for non‑refoulement, i.e., BOR 3 risk, persecution risk, as well as torture, and not BOR 2. As it was not one of the grounds under non‑refoulement claim at the material time. As per the application procedure, any appeals against decisions made by the Director of Immigration should be lodged at the TCAB, not the High Court.

Having regard to the above circumstances, the learned Judge ought to have considered the application procedure and not apply the time restriction in the current scenario.

The Court of Final Appeal held that the right to freedom from ‘cruel, inhuman or degrading treatment or punishment’ [CIDTP] as enshrined in article 3 of the Bill of Rights contained in the Hong Kong Bill of Rights Ordinance (Cap. 383 of the Laws of Hong Kong) is an absolute and non‑derogable right to which there are no exceptions.”

13.  In his affirmation dated 17 May 2018, the applicant essentially repeated his grounds for seeking leave.

14.  By a letter received by the court on 23 May 2018, the applicant consented to this appeal being heard by a two-judge court.

Discussion

15.  The applicant’s complaint that the deputy judge refused to extend time for him to seek leave is misconceived.  He did.

16.  As regards the substantive decision of the deputy judge, we agree with his observations set out in the CALL-1 form.  We cannot find any flaws in his analysis.  We endorse the deputy judge’s conclusion that none of the grounds for seeking relief in the intended application for judicial review was substantiated.   We agree that there was no reasonably arguable ground to challenge the findings of the director and the board and that leave to apply for judicial review should be refused.   That said, we would like to highlight several points.

17.  First, as the deputy judge rightly pointed out in paragraph 32 of the CALL-1 form, the applicant put forward a number of grounds but they lacked particulars.  This is particularly so with grounds (2), (4), (5) and (7).  They are therefore not reasonably arguable.

18.  Secondly, based on the COI material available before them, both the director and the board took the view that state protection was available to the applicant.  The board also gave a detailed analysis of state acquiescence in paragraphs 65 to 68 of its decision and concluded the question in the negative.  There is no reason for us to differ from those views.  There is no scope for finding a risk of torture based on either the concept of state acquiescence or its extended form.  There is no reasonable basis to criticise the decisions of the director and the board based on their consideration of state acquiescence and state protection.

19.  Thirdly, the director explained in paragraph 14 of his first decision why the applicant’s story was unconvincing; so did the board in paragraphs 56 to 60 of its decision.  In our view, they were perfectly entitled to come to those conclusions.  On the basis of their conclusions on credibility, there is no substantial ground for believing that the applicant would face a real risk of being subjected to ill‑treatments meeting the high threshold as required by law (Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, paras 172 to 174).

20.  Fourthly, there is no reasonable basis to challenge the decisions of the director and the board on the ground that they failed to consider the alleged “consistent [pattern] of human right violations”.  As was noted in paragraph 28 of the director’s first decision, the applicant had never been accused, charged, interrogated, arrested, detained or imprisoned in India.  It is obvious from the facts that the Indian government was not involved in the dispute between the applicant and his uncle.  Furthermore, even if there were in fact a “consistent [pattern] of human right violations” in India, such violations per se would not in any way constitute a sufficient ground for determining that the applicant would be in danger of being subjected to torture upon his return: see Re RS, CACV 206/2012, 20 August 2013, para 59.  This ground has no merit whatsoever.

21.  As we have said, we are of the view that the deputy judge’s observations are justified.  Having considered the material available before us, we cannot find any errors of law or procedure in the proceedings before the board, nor any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non‑refoulement claim is essentially a matter for the director and the board, not the court. We agree with the deputy judge that leave should be refused.

22.  For these reasons, we do not see any prospect of success in the intended application for judicial review, and dismiss the appeal accordingly.