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

CACV 175/2023, [2023] HKCA 1191

On Appeal From [2023] HKCFI 1338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 175 OF 2023

(ON APPEAL FROM HCAL NO 816 OF 2019)

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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 K W Lung (“Judge”) on 30 May 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 8 March 2019. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 22 March 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is an Indian national born in 1981. He last arrived in Hong Kong on 17 March 2016 on the strength of his Indian passport and was allowed to remain as a visitor. However, he did not depart and had overstayed since 1 April 2016. On 5 April 2016, he surrendered to the Immigration Department, which received his claim for non-refoulement protection on 19 September 2016. The applicant’s claim was made on the basis that if he returned to India, he would be harmed or killed by his neighbour (Mr Harbhajan Singh) due to a monetary dispute between Mr Singh, the applicant, and the applicant’s father. The factual background of the applicant’s claim was set out at [35] to [45] of the Board’s decision.

3.  By notice of decision dated 22 March 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 11 December 2018, during which the applicant gave evidence and answered questions from the Board. Despite the discrepancies between the oral evidence given at the hearing and the written evidence in the non-refoulement claim form submitted to the Director, the Board overall found in favour of the applicant’s credibility. It was willing to accept that the applicant had a monetary dispute with Mr Singh and that the local police had beaten the applicant as they had sided with Mr Singh. The Board further accepted that an agreement on payment was reached between Mr Singh and the applicant after the incident with the local police.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to India. It found there was in fact no real risk of harm if the applicant would forgo the money that he said was owed by Mr Singh to him. Moreover, the Indian courts were an available avenue if the applicant wished to continue the pursuit of his monetary dispute against Mr Singh. Separately, the Board held that the violence from Mr Singh and his son did not go beyond altercations and foul language. As to the police incident, the Board found, on the basis of available country of origin information (“COI”), that the applicant could seek assistance from police complaints authorities if he wished to do so. It also considered that there was adequate state protection available and that internal relocation to Delhi or Mumbai or indeed any of the other large cities of India would not be unreasonable nor unduly harsh and would enable him to avoid any risk of harm from Mr Singh.

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 8 March 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decisions in the court below

7.  On 25 March 2019, 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, save that in the latter he repeated the basis of his claim for non-refoulement protection and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing. On 30 May 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [14] to [19] of the Form CALL-1 as follows:

“ 14. 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).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. 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.’

17. The Board had set out its findings of the facts in the Board’s Decision, as summarized in paragraphs 9 and 10, supra. There is no valid reason to challenge the Board’s Decision.

18. 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.

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

Appeal to this Court

9.  On 9 June 2023, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal can be summarised as follows:

(1)  The Director failed to appreciate or give proper weight to the presence of state acquiescence in the harm or threat of harm directed against the applicant in India;

(2)  The Board failed to make sufficient enquiries before finalising his decision.

(3)  The Board failed to give a sufficient opportunity to the applicant to arrange for relevant evidence to be adduced in support of his non-refoulement claim and his appeal.

(4)  There was a clear case of unfair attitude shown by the Director, as evidenced by the fact that the Director referred to or relied upon COI which suited his pre-conceived conclusion.

10.  The applicant also stated that the Board failed to give him sufficient opportunity to bring relevant evidence before the Board, in particular given his limited options to do so when he was in detention. However, the records show that the applicant had been released on recognizance since 10 May 2016 and there was no evidence to indicate he was detained during the material times concerning the Board hearing. Enquiries made by this court confirm that the applicant was neither detained by the Immigration Department nor the Correctional Services Department between 2016 and 2018.

11.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the written materials.

12.  The applicant lodged his written submissions on 20 June 2023 in which he set out certain general legal principles and passages quoted from case authorities, and asserted that the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility. The latter contention is clearly misconceived as the Board had in fact ruled in favour of the applicant’s credibility. The applicant did not explain how the legal principles he set out were relevant or applicable to his case.

Discussion

13.  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.

14.  In the present case, the applicant’s grounds in the Notice of Appeal amounted to criticisms of the Director’s and the Board’s decisions raised for the first time. They are not acceptable as grounds of appeal against the Judge’s decision which was based on the applicant’s Form 86 and the accompanying affirmation evidence. This reason alone is sufficient for the appeal to be dismissed. This court has repeatedly stated that an appeal is not the occasion for an applicant to introduce new grounds for judicial review after the original grounds failed in the court below: see Re Qadir Sher [2018] HKCA 160 at [11]. In any event, the grounds advanced are 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].

15.  Further and in any event, the Board rejected the applicant’s appeal on the basis there would be no real risk to the applicant from Mr Singh upon refoulement. The Board noted the applicant’s own evidence that Mr Singh and his son would not go after him unless he were to pursue them for the money he said they owed him. The Board further found there was adequate state protection and that internal relocation was a reasonable and safe option open to the applicant. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave. The applicant had wholly failed to show any reasonably arguable public law ground that vitiated the Board’s decision.

16.  The applicant’s appeal is accordingly dismissed.