DHILLON SUKHRAJ SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION

CACV 653/2020

[2021] HKCA 949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 653 OF 2020

(ON APPEAL FROM HCAL NO 1556 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 18 December 2020, Deputy High Court Judge P. Li (“the Judge”) refused 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 (“the Board”) dated 27 July 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 28 October 2015 and 13 April 2017 rejecting the applicant’s non-refoulement claims.

2.  On 30 December 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  He came to Hong Kong as a visitor on 20 October 2012 and was permitted to stay for 14 days until 3 November 2012.  He did not depart and overstayed.  He was arrested by the police on 12 March 2013 and was subsequently convicted of the offence of breaching the condition of stay and was sentenced for 4 weeks suspended for 3 years.  He lodged a torture claim by way of written representation dated 21 March 2013.  His claim was taken to be a non-refoulement claim under the unified screening mechanism on 3 March 2014.

4.  The applicant’s claim was that if he returned to India, he would be harmed or killed by some Hindu persons as he and his friends had vandalized a Hindu temple when they were drunk.  The factual background was succinctly summarized by the Judge in [2] – [11] of the Form CALL-1 ([2020] HKCFI 3103).

5.  By two notices of decision dated 28 October 2015 and 13 April 2017, the Director had assessed the applicant’s claims on all applicable grounds and determined them against him. The former notice of decision covered applicable grounds are BOR 3 risk[1], persecution risk[2] and torture risk[3], and the latter covered BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 12 May 2017, during which the applicant was interviewed by the Board.  For reasons stated at [68] to [135] of its decision, the Board, after due consideration of the applicant’s evidence in light of the relevant Country of Origin information (“COI”), found that the applicant had not been confronted or threatened or harmed by the Hindu persons at all, and nothing eventful had happened to him after he vandalised the Hindu temple.  He had only heard that one of his Christian friends had been killed by Hindu persons for damaging the Hindu temple but this was not supported by any evidence.  Further, there was no evidence of state involvement and no consent, instigation or acquiescence by any public official.  Internal relocation is a reasonable and viable option.  For the aforesaid reasons, on 27 July 2018 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

7.  On 6 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  He attached a 15-page document containing grounds of relief which was summarised at [22] of the Judge’s decision. In gist, the grounds are: 

(1) There was lack of legal assistance at the hearing before the Board.

(2) The hearing bundle was only available a few days before the hearing.  Most of the documents were in English and the applicant did not have sufficient time to prepare.

(3) The COI and other news sources relied on by the Board were outdated and not officially recognised.

(4) The Board failed to call for psychological and psychiatric reports on the applicant. 

(5) The letter from the Immigration Department inviting him to file further evidence for his BOR 2 claim was sent to his previous address, even though he had informed the Director of the change of address.

8.  A hearing was originally fixed for 25 January 2019.  On 10 January 2019, legal aid was granted to the applicant and the hearing was adjourned.  On 8 October 2019, the applicant’s solicitor informed the court that he had lost contact with the applicant, and legal aid was discharged on 12 May 2020.

9.  The Judge heard the application on 17 November 2020.  In his decision dated 18 December 2020, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [22] – [26] of the Form CALL-1 as follows:

“22. The applicant applied for leave to apply for judicial review on 6/8/2018. In his supporting affirmation, he pointed out several points which is dealt with below:

(a) The applicant complained that he was not represented during the appeal. He had no legal advice before the appeal.

(i) It is well settled that a claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings. ^[5]The applicant had legal assistance in presenting his case to the Director. There was no substantial change of his case before the TCAB. Given the circumstances, I do not find any irregularity even though he was not represented before the TCAB.

(b) The applicant pointed out that the hearing bundle was only available a few days before the scheduled hearing at the TCAB. Most documents were in English. He did not have sufficient time to prepare.

(i) The most important document in the hearing bundle should be the decision of the Director. It was sent to the Duty Lawyer Scheme on 28/10/2015. I am sure the DLS had translated the decision to the applicant.

(ii) As to the NCF and the screening interview before the Director, the applicant was assisted by the DLS. He should have fully understood the content.^[6] The short notice, even if accepted, would not give rise to unfairness.

(iii) The applicant pointed out that he could not understand the written skeleton argument of the Director in the hearing bundle. In my view, the applicant should seek assistance from others according to his resources. There is no duty on the part of the Director to supply translated documents. The argument of the Director set out in the skeleton must have been translated to him during the hearing at the TCAB. Had there been any difficulties, he should have sought assistance from the adjudicator during the hearing.

(iv) I notice that both the Form 86 and the affirmation for the leave application were in English. They are well structured. This indicate that the applicant was able to find assistance.

(v) The applicant was able to raise four grounds of appeal which were summarised by the adjudicator in her decision.^[7] He was able to answer the questions put by the adjudicator. This shows that he understood the proceedings.^[8]

(c) The applicant complained that the COI and other news sources relied on by the adjudicator were outdated and not officially recognised.

(i) Under the “high standard of fairness”, the Director and TCAB have the duty to draw the claimant’s attention to issues requiring clarification. At the same time, the applicant bears the burden of proving his claim.^[9] He should have filed relevant information in support of his claim especially when he was assisted by the DLS in preparing his claim. It would not be appropriate for either party to sit back and let the other party prove or disprove the claim. It should be one of joint endeavour.^[10]

(ii) The COI concerning the situation in India mainly came from the United States Department of State, the Central Intelligence Agency US and the UK Border Agency. They are mainly from the year 2014-2015. They are State agencies collecting information through diplomatic channels. The information provided should be highly relevant in assessing the situation in India.

(iii) As to the media reports, they included The Times of India, The Hindu and Reuters and Wikipedia. It may be difficult to assess their reliability. However, they were used to corroborate the findings in the COI reports by the State agencies. They were not the primary source of assessment of the situation in India.

(iv) It is true that the adjudicator had not checked the updated reports after 2015. On the other hand, the applicant is unable to point out any substantial change or deterioration of circumstances in India since 2015. The applicant was well aware of the material relied on by the Director who listed out all the relevant websites in the decision of 28/10/2015. Had there been any relevant information, the applicant should have sufficient time to raise it during the hearing with the TCAB in May 2017.

(v) Ultimately, the crucial issue is the evaluation of risk of harm in light of all the evidence before the adjudicator. She found that there was no torture,^[11] there was no harm at all which attain the minimum level of severity^[12] and there was no real risk that the applicant would be sentenced to death for tearing the Hindu Holy Book^[13]. In my view, 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 required by law.

(vi) In his Form 86^[14], the applicant mentioned 3 accounts/reports in 2010-2011 which he claimed would show the human rights circumstances in India. In my view, the relevant time is the time of the assessment before the TCAB. Secondly, a general situation of violence is insufficient, there must be personal risk of torture, BOR 2, BOR 3 or persecution. These 3 accounts/reports cannot take the applicant’s case any further.

(vii) In the circumstances, I do not see any irregularities even though the COI are not the most updated version.

(d) In the Form 86, the applicant complained that the adjudicator failed to call for psychological and psychiatric reports at any stage. The applicant had not raised any evidence to support that such reports were necessary. This is a general assertion which is of no merits.^[15]

(e) The applicant complained that the letter inviting him to file further evidence for BOR 2 claim was sent to his previous address by the Director. He further claimed that he had informed the Director of the change.

(i) The invitation letter, dated 14/3/2017, for filing of BOR 2 information was not available. I can safely assume that it should have been sent to his address at Ng Ka Tsuen, Kam Sheung Road as the further decision of the Director.^[16] It is the same address as recorded in the Form 86 which was filed on 6/8/2018. There was no change of address as he claimed. In fact, the applicant had not complained about this to the adjudicator. It was not a ground of appeal.

(ii) The applicant has a duty to update his address with the Director and the TCAB under s 37ZA (2) of the Immigration Ordinance. Even if he had changed his address, he should have arranged the mail to be diverted to him. He should bear the consequence of the failure to inform any change of address.

(iii) At the time of the hearing before the TCAB, the adjudicator was aware of the decision of the Director on the BOR 2 claim. The applicant gave evidence in the hearing. He should have sufficient chance to elaborate his grounds again.

(iv) I do not see any unfairness in this aspect.

23. The adjudicator had not made a specific ruling on persecution risk in her decision. However, for the reasons below, I do not see any material irregularity warranting the grant of leave:

(a) The adjudicator must have considered the decision of the Director who set out clearly the reasoning for rejecting the claim on persecution risk.^[17]

(b) In the decision of the TCAB, the adjudicator had set out correctly the legal principles relevant to the assessment of persecution risk.^[18]

(c) The adjudicator had pointed out that the applicant brought trouble upon himself by vandalising the Hindu Temple, in a fit of drunken fury, over the acts of some Hindus who damaged the church. He was never confronted by the Hindus and there was no threat directly to him.^[19]

(d) The adjudicator pointed out that there was no evidence of a consistent pattern of gross, flagrant or mass violation of human rights in India.^[20]

(e) The adjudicator cited a USSD report that the Indian government recognised and protect minority religious groups including Christians.^[21]

(f) I accept that there is a duty for the adjudicator to give reasons and make specific ruling. However, where all the evidence point clearly to an obvious conclusion, the failure to give reasons for a specific ruling would not affect the rationality of the whole decision.

(g) In my view, the adjudicator was fully alive to the issues of persecution risk. She was fully aware of the principles and evidence. It was an unfortunate oversight. I do not think this would affect the validity of her decision.

24. In the hearing held on 17/11/2020, the applicant said he had nothing to update. He had no one to assist him in obtaining evidence from India. His brother was in Korea. His mother had passed away. His father was blind.

25. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duties of the TCAB and the Director. In general, this court would not interfere.

26. In my judgment, there is no error of law or procedure.  The decisions are reasonable.”

Appeal to this Court

10.  On 30 December 2020, the applicant filed a Notice of Appeal against the Judge’s decision in which he advanced the following grounds:

“The Honourable Deputy High Court Judge P. Li was wrong in law in holding that there was no state acquiescence or involvement. And failed to provide a detailed reason in support of this decision. Also the country origin information was ignored while preparing this Judgment dated 18 days of December 2020.”

11.  In his supporting affirmation filed on the same day, he further advanced the following grounds of appeal:

(1) The Judge was wrong in law in holding that there was no state acquiescence or involvement.

(2) The Judge failed to provide detailed reason in support of his decision.

12.  On the same day that he filed his Notice of Appeal, the applicant requested the appeal to be heard by 3 judges.

13.  In compliance with the Court’s directions of 28 April 2021, the applicant lodged his written submissions on 31 May 2021.  In those submissions, he quoted some cases and stated some general legal principles in relation to the determination of non-refoulement claims.  He further complained that the Board had failed to scrutinize the Director’s decision and failed to consider the relevant COI in relation to his case.  At the hearing before this court, he had nothing to add.  

Legal principles

14.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

15.  Regarding the grounds of appeal raised in the Notice of Appeal and his supporting affirmation, as mentioned earlier, assessment of evidence and COI materials and state protection are primarily within the province of the Board.  The Court will not intervene in the Board’s assessment on state acquiescence or involvement unless it is reversible on valid public law ground. 

16.  As was pointed out by the Board at [74] to [80] of its decision, the applicant brought trouble upon himself in vandalizing the Hindu temple when he was drunk, and according to him, some Hindu persons wished to exact retaliation for his action.  There was no evidence that any public official was involved in the matter, nor that the State had any interest in it. In our judgment, the Board’s finding on absence of state acquiescence was well based and justified.

17.  The applicant’s complaint that the Judge had ignored the COI information in his decision was couched in general terms only.  The Judge had dealt with this at paragraph 22(c)(i) to (vii) of his decision (as set out at [9] of this judgment).  We found no error of law in his decision. 

18.  In relation to the grounds set out in the written submissions, they are general assertions without particulars and cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244. 

19.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge was plainly right to refuse leave. 

Order

20.  For the above reasons, this appeal is dismissed.