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CACV 215/2020
[2020] HKCA 920
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 215 OF 2020
(ON APPEAL FROM HCAL 218 OF 2018)
________________________
| RE |
NIRMAL SINGH |
Applicant |
________________________
| Before: |
Hon Chu JA, Lisa Wong and ST Poon JJ in Court |
| Date of Hearing: |
9 November 2020 |
| Date of Judgment: | 9 November 2020 |
| Date of Handing Down Reasons for Judgment: | 16 November 2020 |
________________________
REASONS FOR JUDGMENT
________________________
Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. On 9 November 2020, we dismissed the appeal by the abovenamed applicant, Mr Nirmal Singh, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 17 June 2020 refusing him leave to commence judicial review proceedings (“Judge’s Decision”). We now give reasons.
2. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 26 January 2018 (“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”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 21 June 2016 and a notice of further decision dated 18 July 2017 (“1st Director’s Decision” and “2nd Director’s Decision” respectively and “Director’s Decisions” collectively).
Basis and allegations in support of NRF Claim
3. The basis of the NRF Claim made by the applicant, a national of India now aged about 33, is a fear of being attacked or even killed by his uncle Baldev (“Baldev”) over a land dispute if he should return to India. Such alleged fear is said to arise out of the following circumstances:
(1) The applicant was born and raised in Punjab.
(2) Baldev is a member of the Shiromani Akali Dal (“SAD”), the ruling party of Punjab since 2005. The majority of the people in their village are members of the SAD and therefore pro-SAD.
(3) Baldev was the village head. He also became a member of the village council since 2009.
(4) The applicant and his family supported the rival Indian National Congress Party.
(5) The applicant and his elder brother inherited a piece of farmland (“Land”) from his father in around 2006. Baldev owned a piece of farmland adjacent to the Land.
(6) On about 4 occasions since early 2009, arguments broke out due to disputes over water diversion from, and intrusion of, the Land by Baldev. The applicant did not believe that the village council could help them settle the dispute due to Baldev’s positions in the village and because most of the villagers were pro-SAD.
(7) The first 3 occasions involved only verbal altercations. However, on the 4th occasion at about the end of 2009, a physical fight broke out and the applicant injured Baldev in his head (“Alleged Assault”). The applicant himself sustained some bruises at his back and right leg.
(8) After seeing a doctor at a private clinic, the applicant fled to another village about 20 km away from his home village. The applicant stayed there for around a month during which he did not encounter any direct danger. While the applicant was away, Baldev went to his home 2 to 3 times to ascertain his whereabouts.
(9) The applicant did not report the matter to the police as he was the one who injured Baldev. Besides, he did not think that the police would assist him as the SAD also had a strong influence on the police.
(10) To avoid further trouble, the applicant moved to, and worked as a gardener in, Malaysia from 2010 to 2013. Whenever he returned to India, he would stay with a friend in another village in Punjab. He did not encounter any problems there.
(11) The applicant’s family told the applicant not to return to India after he arrived in Hong Kong as Baldev had lodged a complaint against the applicant with the police that he had assaulted Baldev’s son in 2009 and the police would arrest him if he should return to India.
Entry into Hong Kong, arrest and lodgment and processing of NRF Claim
4. The applicant arrived in Hong Kong on 15 April 2014 as a visitor on his own passport and was permitted to stay until 29 April 2014. He was arrested by the police in Hong Kong on 18 July 2014 after having overstayed for about 3 months. He lodged the NRF Claim by written representation with the Director on 20 July 2014.
5. The applicant submitted his Non-refoulement Claim Form dated 21 January 2016. In processing the NRF Claim, the Director’s representatives interviewed with the applicant on 15 April 2016. The applicant then had legal assistance and representation from the Duty Lawyer Service.
Director’s Decisions
6. The 1st Director’s Decision covered torture risk[1], persecution risk[2] and “BOR 3” risk[3]. The Director found the NRF Claim unsubstantiated under these grounds.
(1) First, Baldev’s behavior showed that he had no real intention to cause the applicant any serious harm.
(2) Second, the availability of state protection would further lower or even negate the level of risk (if any). There is objective country of origin information (COI) showing that the Indian government does protect its citizens’ rights and has taken practical steps to monitor the conduct of the Indian police and improve their effectiveness.
(3) Third, reasonable internal relocation alternatives are available in such a vast and populous country as India. It is not unduly harsh or unreasonable for an able-bodied adult like the applicant to relocate to say Mumbai. There is no evidence that Baldev could mobilise the power or resources necessary to locate the applicant throughout India.
7. Following the 1st Director’s Decision, by a letter dated 22 June 2017, the applicant was invited to submit additional relevant facts on or before 6 July 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable ground. The applicant did not respond to such invitation. In the absence of additional information, by the 2nd 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
8. The applicant appealed to the Board after the 1st Director’s Decision on 30 June 2016.
9. The Board conducted a rehearing of the NRF Claim on 29 November 2017 at which the applicant, with suitable interpretation, testified before and answered questions by the Board.
10. The Board’s Decision covered all 4 applicable grounds[5] for non-refoulement protection.
11. After considering the applicant’s evidence and hearing him at the hearing, the Board found the applicant’s account of the centerpiece of the NRF Claim to be inconsistent and exaggerated, if not incredible. The Board did not believe that Baldev is an influential SAD member; that the Alleged Assault occurred; or that the Indian police are seeking to arrest the applicant.
12. The Board also came to the same conclusions as the Director on the availability of state protection and reasonable internal relocation alternatives.
Application for leave for judicial review and Judge’s Decision
13. By a Notice of Application for Leave to Apply for Judicial Review issued against the Director and the Board under HCAL 218/2018 on 12 February 2018 (“Form 86”), the applicant sought leave to apply for judicial review.
14. In the space “Judgment, order, decision or other proceedings in respect of which relief is sought”, the applicant wrote “Non-Refoulement claim has been By (sic) Rejected by immigration department HKSAR”, with “Dated 22 June 2017” written immediately below. 22 June 2017 was the date on which the Director sent a letter to the applicant to invite him to provide further information in support of his BOR 2 claim. There was really no indication by the applicant as to which decision(s) he wished to apply for judicial review. Nor did he provide any grounds for seeking relief in the Form 86 or in his accompanying affirmation. Nonetheless, the Judge proceeded to process the application as one for leave for judicial review of both of the Director’s Decisions as well as the Board’s Decision.
15. As the applicant did not request for an oral hearing, the Judge dealt with the application on the material before him. The Judge explained the refusal of leave at [11]-[16] of the Form Call-1 dated 17 June 2020, [2020] HKCFI 1185, as follows:
“11. … In the absence of any valid ground or complaints of any error in those decisions being put forward by the Applicant, I do not find any basis or merits in his intended application.
12. As has been repeatedly emphasized by the Court of Appeal, 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 The Director of Immigration [2018] HKCA 524.
13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the analysis and reasoning set out in paragraphs 12 - 19 of its decision with the benefit of hearing him in evidence and answers to questions at his appeal hearing, and in the absence of any legal error or procedural unfairness in the decision being identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
14. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.
15. 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.
16. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”
Appeal to Court of Appeal and grounds of appeal
16. By a notice of appeal filed herein on 24 April 2019, the applicant appealed against the refusal of leave for judicial review on the following ground (sic):
“I am not satisfied with the decision because its away form facts and reality which are related with my case. There is no any transparency in these dicision. please accept my application and allow me to process further my case”
17. On 13 September 2020, the applicant lodged written submission, by which the applicant repeatedly asserted that his life would be in danger if he were to return to India and that the authorities there could not protect him. He further accused the Board of ignoring “so many things” regarding his case, from which he then complained that all the decisions concerning his case were not “transparent”. The applicant has however not given any particulars of any aspect of the NRF Claim, whether legal or factual, that had been overlooked. The applicant requested for this court’s assistance so that he could extend his stay in Hong Kong.
18. The applicant did not appear at the hearing of the appeal on 9 November 2020.
Court of First Instance’s role in judicial review in non-refoulement claim
19. 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
20. 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 will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, 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) & (4)].
Discussion
21. As summarised in [6], [7], [11] and [12] above, the NRF Claim failed on the facts at both stages of the unified screening mechanism. The questions whether the applicant would be at risk of life or torture if he is refouled to India and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director). The applicant has not advanced any ground of appeal, properly so called, that tackles the negative findings of fact against him.
22. As for the “ground” in the notice of appeal, the applicant has failed to identify in what ways the Judge’s Decision took into account matters that are removed from reality.
23. Nor do we see any merit in the criticism of lack of transparency. The Director’s Decisions, the Board’s Decision and the Judge’s Decision all explained in great detail both the factual and legal bases upon which those determinations were reached.
24. The applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the findings by the Board. That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.
25. Nor did he in the notice of appeal or written submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
Disposition
26. For these reasons, we saw no basis to interfere with the Judge’s decision. Accordingly, we dismissed the appeal.
| (Carlye Chu) |
(Lisa Wong) |
(S T Poon) |
| Justice of Appeal |
Judge of the
Court of First Instance |
Judge of the
Court of First Instance |
The applicant was unrepresented and absent
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] With the applicant’s consent, the Board also dealt with the 2nd Director’s Decision, which was issued after the filing of the Notice of Appeal/Petition on 30 June 2016.
[6] [1954] 1 WLR 1489.
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