SUDHIR SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 319 /2024, [2025] HKCA 460

On appeal from [2024] HKCFI 1970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 319 OF 2024

(ON APPEAL FROM HCAL NO 879 OF 2021)

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J U D G M E N T

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

1.  On 30 July 2024, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against that decision on 5 August 2024.

2.  The applicant is a national of India.  He entered Hong Kong illegally on 1 November 2019 and was arrested by the police on 5 November 2019.  He lodged a non-refoulement claim on 27 November 2019. His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle because of a land dispute.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 8 July 2020, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  Having considered that the applicant was allegedly assaulted once by his uncle and managed to escape though his uncle tried to fire at him with a gun, the Director assessed that the uncle did not have genuine intention to kill the applicant.  The Director did not accept that the applicant would be genuinely in danger as he and his family remained intact despite the alleged incidents and threats.  The Director also held that the availability of state protection and internal relocation options in India would further lower or negate any perceived risk.  

5.  The applicant filed an appeal against the Director’s decision with the Board and attended the hearing before the Board on 23 March 2021.  The Board found that the applicant’s claims about the land dispute was either greatly exaggerated or completely untrue because of his failure to produce any supporting documents as well as the contradictory and confusing evidence he gave.  The Board was not satisfied there are substantial grounds to believe that the applicant would face real risk of ill-treatment as claimed if he were to return to India.  Therefore, the Board decided that the applicant was not entitled to non-refoulement protection on any of the applicable grounds and dismissed the appeal on 6 May 2021.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 16 June 2021 to seek leave to apply for judicial review against the decision of the Board.  He stated the following grounds of intended challenge in his supporting affirmation:

(1)  the adjudicator did not give him sufficient time to properly present his case;

(2)  the interpreter did not properly provide interpretation service to him at the hearing;

(3)  the adjudicator unreasonably assessed that the applicant can relocate to other places in India but it is impossible for him to do so; and

(4)  the adjudicator wrongly assessed that state protection would be available to him while the Indian authority is his enemy.

The judge’s decision

7.  The applicant attended the hearing before DHCJ Bruno Chan on 11 July 2024.  The judge found that the Board has given detailed analysis and reasoning in its decision and the applicant’s grounds are not supported by the necessary particulars or elaboration so he does not have any reasonably arguable basis to challenge the Board’s findings.  The judge also held there is no error of law, procedural unfairness or failure to apply high standards of fairness in the consideration and assessment of the applicant’s claim by the Director and the Board.  The judge was not satisfied that the applicant has any prospect of success in his proposed judicial review and dismissed the leave application on 30 July 2024.

Grounds of appeal

8.  In the Notice of Appeal, the applicant only stated that he was not satisfied with the order of the High Court without stating any specific grounds against the judge’s decision.

9.  He submitted a written consent to the disposal of his appeal on paper without an oral hearing.  Despite the directions given by the Registrar of Civil Appeal requiring the applicant to lodge written submissions on or before 19 August 2024, he did not lodge any written submissions.

Legal principles

10.  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.

11.  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 scrutinising 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 Country of Origin Information 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.

12.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Disposition

13.  The applicant has not identified any error in the judge’s decision in the Notice of Appeal.  He has not lodged any submissions in support of his appeal.  We conclude that he did not have any valid ground to challenge the judge’s decision. 

14.  The appeal is devoid of merit and is dismissed accordingly.