RE KAWALJEET SINGH

CACV 489/2022, [2023] HKCA 417

On Appeal From [2022] HKCFI 3624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 489 OF 2022

(ON APPEAL FROM HCAL NO. 2497 OF 2018)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 13 December 2022[1] refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 1 November 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”)  dated 30 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He was born in 1975 in Delhi, India.  He moved to live in Haryana when he was around 23 to 24 years old, and earned his living there by running a shop selling electronic items.  He entered Hong Kong illegally and was arrested by the police on 20 August 2015.  He later raised a non-refoulement claim based on fear of being harmed or killed by supporters of the Bharatiya Janata Party (“BJP”).  The details of the applicant’s claim are set out at [6] to [10] in the Board’s Decision.

3.  In gist, the applicant claimed that he was a supporter of the Congress Party (“CP”)  since 2010, but he had never become a member.  He only attended rallies and encouraged others to vote for the CP by posting election posters on walls and lampposts.  In October or November 2014, some BJP supporters asked him and his friends to switch their allegiance to BJP, which they refused.  This led to a fight during which one of the BJP supporters was badly injured by the applicant’s friends[2].  The following day, the applicant was attacked by the supporters of BJP who also vandalised his shop.  He was taken to hospital for treatment.  After his discharge, the applicant went to report the incident to the police but was told he would get into trouble if he filed a complaint as BJP was the ruling party.  Fearing for his safety, the applicant left his village and went to live in various places in India and finally sneaked into Hong Kong.  The applicant claimed that the BJP supporters kept looking for him and his mother had to file a missing person report on him.  Despite that, she continued to receive threats from them and eventually died of a heart attack in May 2017.   

The Director’s decision

4.  By a Notice of Decision dated 30 November 2017, the Director rejected the applicant’s claim on all applicable grounds, namely, BOR 2 risk[3], BOR 3 risk[4], persecution risk[5] and torture risk[6] grounds.   

The Board’s decision

5.  The applicant appealed to the Board.  On 17 September 2018, the Board conducted an oral hearing during which the applicant was assisted by a Punjabi interpreter.  By its decision dated 1 November 2018, the Board dismissed the appeal.

6.  The Board was of the view that no credence could be attached to any of his claims, having regard to the remarkable vagueness of the applicant’s evidence, serious discrepancies between the applicant’s oral evidence before the Board and the account he gave to the Director, his lack of knowledge about the CP, and his inability to give the minimally acceptable level of detailed coherent evidence.  The Board concluded that the applicant failed to establish any of the facts he asserted, and that his appeal failed on all applicable grounds.  

The Judge’s decision

7.  The applicant filed a Form 86 on 7 November 2018 to apply for leave to judicially review the Board’s decision.  He did not provide any ground in support of his application.  He only stated in his supporting affirmation that he was not satisfied with the Board’s decision and that he is not safe in his country.

8.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 13 December 2022, the Judge refused to give leave for judicial review and gave his reasons in [13] to [18] as follows:

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.”

16. There is no valid reason to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

This appeal

9.  The applicant filed a Notice of Appeal on 23 December 2022 to appeal the Judge’s decision. The Notice of Appeal stated the following as grounds of appeal:

“The [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

10.  In his written submissions lodged on 31 January 2023, the applicant put forward the following arguments:

(1)  The decision has the effect of finally disposing of his claim, making him liable to be removed and entailing significant implications for his substantive right not to be subjected to torture and his right to non-refoulement protection.  Hence, high standards of fairness are required: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51]; and ST v Betty Kwan [2014] 4 HKLRD 277[7]. 

(2)  The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if it could “find fault with the decision of the Immigration Officer”, whereas he should have considered matters such as the country conditions.

(3)  At common law, minimum standards of procedural fairness are required and the decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134].

11.  At the hearing of the appeal, the applicant stated that he has nothing left in India, he has no family member and is all alone.  He further said that if he was killed, no one would follow up for him, and this is why he wants to remain in Hong Kong.

Our reasons for decision

12.  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]. They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board, who are responsible for assessing the credibility of witnesses, the evidence and country of origin conditions, and make findings of fact pertaining to whether there are risks of harm, availability of state protection and viability of internal relocation.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. 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 and/or the process by which the decision was made.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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 it is a fresh application for judicial review.

13.  In light of the established legal principles set out above, we are of the view that the grounds and arguments put forward by the applicant have no merits.  Our reasons are as follows:

(1)  Critically, the applicant has not pointed to any error in the Judge’s decision.  His complaints in the Notice of Appeal and his written submission are directed solely at the Board’s decision.

(2)  The complaint in the Notice of Appeal about the use of and reliance on COI is not only vague but is simply misplaced.  This is because the Board had not relied on or referred to any COI in its decision.

(3)  The complaint in the written submission that the Board did not approach the appeal as a rehearing is factually incorrect. It is evident from the Board’s decision that it did not, as the applicant suggested, approach the appeal simply by trying to see if the Director’s decision was justified.  On the contrary, the Board had considered and analysed the applicant’s evidence in detail before reaching its own findings and conclusion on the applicant’s claim.

(4)  The applicant has not explained how the cases and legal principles cited in the written submission relate or apply to his case or appeal.

(5)  The applicant’s assertion that he will face hardship if he returns to his home country cannot stand in light of the Board’s rejection of his core case and the evidence underlying his claim.  Assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision maker. The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. The applicant has not advanced any arguable grounds in this appeal to challenge the Board’s assessment of credibility.

(6)  For the same reason, the matters urged by the applicant in his oral submission cannot assist his appeal.  

14.  We have separately reviewed the Board’s decision.  We agree with the Judge that the intended judicial review has no reasonable prospect of success and leave to apply for judicial review should be refused.  

15.  As the applicant’s appeal has no merits, we dismiss the appeal.