ARMAN SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 472/2022

[2025] HKCA 1053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 472 OF 2022

(ON APPEAL FROM HCAL NO. 721 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (the “Judge”)  given on 23 November 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” and the “Board’s Decision”)  dated 13 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (the “Director”)  dated 23 December 2016 rejecting the applicant’s non-refoulement claim.

BACKGROUND

2.  The applicant is a national of India.  He was born in 1955 in Cheema Kalan in Punjab, India.  After completing high school, he started working on his family’s farmland.  He entered Hong Kong on 14 December 2013 as a visitor and was permitted to remain until 28 December 2013.  He subsequently overstayed and was arrested by the police on 31 December 2013.  On 2 January 2014, he lodged a non-refoulement claim with the Immigration Department. 

3.  The applicant claims that if he returns to India, he will be harmed or killed by a person named Kalu over a verbal dispute involving a piece of farmland owned by the applicant’s grandfather.  One day in August 2013, Kalu and his companions went to the applicant’s home to demand his family to handover the farmland, in which they refused.  A heated dispute ensued between Kalu and the applicant where Kalu found that the applicant was being disrespectful as he has spoken ill of Kalu.  Since then, Kalu had been holding a grudge against the applicant and he went after the applicant on several occasions and threatened to kill him if his family refused to handover the farmland.  Fearing for his safety, the applicant fled to his maternal home in Kalsian Kalan in September 2017 and stayed there until November 2017 when he eventually left India for Hong Kong upon hearing from his family that Kalu was still looking for him.  The details of the applicant’s claim are set out by the Board at [9] in the Board’s Decision, and summarised by the Judge at [4] and [5] of the Form CALL-1. 

THE DIRECTOR’S DECISION

4.  By a Notice of Decision dated 23 December 2016, the Director rejected the applicant’s claim on all applicable grounds on BOR 2 risk[2], BOR 3 risk[3], persecution risk[4] and torture risk[5].  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed by Kalu upon his return to India; that reasonable state protection was available to him and internal relocation was a reasonable alternative for him. 

THE BOARD’S DECISION

5.  The applicant appealed to the Board and a hearing took place on 26 January 2018 where he confirmed and adopted the information in the hearing bundle before the Board.  On 13 July 2018, the Board dismissed the appeal. 

6.  After summarising the principles of the risk of harm and considering the evidence of the applicant and the available Country of Origin Information (COI), the Board found that his evidence was implausible.  In particular, the Board found that Kalu’s intention was to seize the farmland but he went after the applicant instead of the owner of the farmland, i.e. his grandfather[6].  The Board also noted that Kalu did not inflict any violence on the applicant or his family even during the heated argument.  The Board did not accept that Kalu would harm or kill the applicant over a mere verbal dispute between them[7].  On several encounters with Kalu, the applicant was outnumbered by Kalu and his gang and yet he was not harmed or injured at all[8].  In the assessment of the applicant’s credibility, the Board found that the applicant did not provide any evidence on his family’s ownership of the land and there was no evidence supporting Kalu’s background as alleged[9].  His account of the encounters with Kalu and on his international relocation to his maternal home were fraught with inconsistencies and lacked evidential support, which impacted on the reliability of his evidence[10].  The Board found that the purported ill-treatment on the applicant had not attained a minimum level of severity[11].  On the basis of the available COIs, the Board assessed that state protection would be available to the applicant[12].  Overall, the applicant has failed to satisfy the threshold of the level of risks required for non-refoulement protection on all applicable grounds. 

THE JUDGE’S DECISION

7.  The applicant filed a Form 86 on 14 March 2019 for leave to apply for judicial review of the Board’s Decision which was late by about 5 months.  He did not give any explanation for his delay.  According to his supporting affirmation and the grounds attached for his Form 86, he challenged both the decisions of the Director and the Board as being unreasonable and unfair in that the COI in favour of his case and his arguments were not given proper weight and importance.  He also stated that he was tortured by the enforcement agencies and those high up in the political circles. 

8.  A hearing took place before the Judge on 21 September 2022,  which the applicant attended and was assisted by a Punjabi interpreter. 

9.  In his decision dated 23 November 2022, the Judge refused to give leave for judicial review and gave reasons in [14] to [22] of the Form CALL-1 as follows:

“DISCUSSION

14. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 13 October 2018. The delay is about 5 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. However, I shall first consider the merits of the applicant’s case.

15. 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).

16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understood the Director’ Decision and the Board’s Decision. He complained that the Board did not accept his evidence.

17. 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.’

18. As to the grounds in paragraph 13 above, there is no evidence that he was tortured by the enforcement agencies or the political circles. The other grounds are only assertions or opinions without any evidence in support.

19. The Board had assessed his evidence and, for the reasons above, found the facts of his case. There is no valid reason to challenge the Board’s Decision.

20. 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.

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

CONCLUSION

22.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

GROUNDS FOR APPEAL

10.  The applicant filed a Notice of Appeal on 2 December 2022 to appeal the Judge’s decision.  The grounds of appeal are summarised as follows:

(1)  No language or legal assistance was provided to him at all material times.  He was unable to elaborate on any grounds in his application for judicial review[13]. 

(2)  The Court did not arrange for an oral hearing for his application[14]. 

(3)  There are no other avenues for non-refoulement claimants to appeal against the decision (of the Board)  based on credibility and it is procedurally unfair[15]. 

11.  The applicant’s appeal was initially listed for an oral hearing and he was directed to lodge a written skeleton argument not less than 28 days before the hearing and further warned that if he failed to do so, he shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with his appeal being determined on paper. The applicant failed to lodge a written submission, and the oral hearing was vacated. We have accordingly proceeded to deal with this appeal on the basis of the papers before the Court. 

DISCUSSION

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.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin. 

(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)  To the extent that the applicant now seeks to rely on the lack of legal and language assistance to challenge the Judge’s decision, this is a new ground which was not raised in the court below.  An appeal against the refusal of leave to apply for judicial review is not a rehearing of the application for leave, and is not an occasion for an applicant to raise new grounds after his original grounds failed, otherwise an applicant can simply disregard the time limit for applying judicial review in Order 53 rule 4(1)  of the Rules of the High Court, Cap.4A.  The applicant should not be permitted to rely on this new ground. 

(2)  In any event, we note in the applicant’s Form 86 that he was able to elaborate and to give reasons for his grounds of challenge against the decisions of the Board and the Director, and that he was able to articulate his grounds of appeal and the alleged errors of the Judge’s decision in his Notice of Appeal.  It is clear that his complaint as to the lack of legal or language assistance did not deprive him of his ability to prepare for and to proceed with the leave application and the present appeal.  In any event, it is trite that a non-refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14 at [18], and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Cucan Fatimah v Torture Claims Appeal Board [2018] HKCA 1264 at [20].  For these reasons, we do not accept the alleged lack of legal or language assistance has rendered the process procedurally unfair. 

(3)  Contrary to the applicant’s assertion that there was no hearing before the Judge, the applicant attended a hearing on 21 September 2022 with the assistance of a Punjabi interpreter in his application for leave to apply for judicial review, where the applicant has indicated to the Judge that he understood the decisions of the Director and the Board[16].

(4)  In relation to the applicant’s complaint that there are no avenues for non-refoulement claimants to appeal against the decision of the Board based on credibility, this is a new argument not raised before the Judge and the applicant should not be permitted to rely on this ground.  In any event, this is not a valid ground of appeal as the Court’s role in a judicial review is not to provide a further avenue of appeal.  The assessment of credibility and evidence are matters within the province of the Board and the Director as the primary decision-makers.  

(5)  For these reasons, none of the arguments raised in the Notice of Appeal can amount to arguable ground for the intended judicial review.  In the circumstances, there is no basis for this Court to interfere with the Judge’s refusal of the application for leave to apply for judicial review.

14.  Having considered the materials before us, we agree with the Judge that there is no error of law or procedural unfairness in the decision of the Board, that the intended judicial review has no reasonable prospect of success, and that leave to apply for judicial review should be refused. 

ORDER

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