SINGH LAVPREET v. TORTURE CLAIMS APPEAL BOARD

CACV 285/2023, [2024] HKCA 66

On Appeal From [2023] HKCFI 2260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 285 OF 2023

(ON APPEAL FROM HCAL NO 1379 OF 2020)

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BETWEEN

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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 4 September 2023[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 14 May 2020. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 26 April 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India born in 1996. He claimed to have entered Mainland China from India on the strength of his Indian passport on 6 June 2015 and subsequently entered Hong Kong illegally on 7 December 2015. On 8 December 2015, he surrendered to the Immigration Department and submitted his written significations for non-refoulement claim dated 18 August 2016 and 2 September 2016 respectively. The applicant’s claim was made on the basis that if he returned to India, his neighbour, a man called Jagtar, would harm or kill him due to his unwillingness to sell his father’s piece of land to Jagtar. The factual background of the applicant’s claim was set out at [19] to [31] of the Board’s decision.

3.  By notice of decision dated 26 April 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 16 January 2020, during which the applicant gave evidence and answered questions from the Board. At the oral hearing, the applicant submitted, inter alia, that the land was still owned by his father, that he, his brother and sister would inherit the land in the event of his father’s death, and that the police would not allow Jagtar to occupy his father’s land as Jagtar had done with other people’s land. When asked why Jagtar did not directly assaulted the applicant’s father, as owner of the land, instead of the applicant in the second incident or why the applicant’s brother and sister would not also be at risk of harm, as potential beneficiaries of the land upon the father’s death, the applicant had no explanation. He also had no explanation as to other queries raised by the Board in relation to his factual claims advanced. As a result, the Board found that none of the applicant’s claims about assaults on his father or on himself by Jagtar were credible or consistent.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to India. It found there was no real risk of harm if the applicant returned to India, because it found against the applicant’s claims that Jagtar or his associates would harm or kill him or that the police would not provide him with any protection due to Jagtar’s political connections. The Board also found that there was no real risk that the applicant would be harmed or be killed if he returned to live at his family home. If relocation was necessary, it found that the applicant could relocate without undue hardship elsewhere in Uttarakhand state, or to some city in Punjab state or Uttar Pradesh within India.

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 14 May 2020, 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 3 July 2020, 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. He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation. In the latter, he stated he would like to give the Court a more complete picture and annexed the Board’s decision.

8.  An oral hearing was held on 1 August 2023. Apart from the available documents, the applicant confirmed that he had nothing further to say to the court in relation to his application. On 4 September 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [13] to [16] of the Form CALL-1 as follows:

“ 13. 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.

14. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision 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.

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 accordingly I refuse his leave application.

Appeal to this Court

9.  On 14 September 2023, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal were, essentially, criticisms of the decisions of the Director and the Board. He claimed that the Director and the Board were unfair in determining his claim to be unsubstantiated, to be relating to only a private land dispute which could be easily resolved by local authority and to be unsupported by solid grounds, by finding availability of state protection and internal relocation, and by referring to COI materials from online sources.

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

Discussion

11.  In assessing the merit 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 did not find the applicant’s claims of assaults on his father and himself by Jagtar to be credible. The Board also considered that police protection would be available to the applicant and internal relocation within Uttarakhand state, or to Punjab state or Uttar Pradesh would be viable as well. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The grounds advanced by the applicant consist of mere general and bald assertions regarding the decisions of the Director and the Board without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

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 reviewable error in the Judge’s decision.

14.  The applicant’s appeal is accordingly dismissed.