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

CACV 174/2021

[2022] HKCA 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 174 OF 2021

(ON APPEAL FROM HCAL NO 3006 OF 2018)

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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 7 April 2021, DHCJ 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 7 December 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 20 March 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds other than torture which had been disposed of on 15 September 2010.

2.  On 16 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing. 

3.  Pursuant to the directions of Registrar of Civil Appeals made on 26 May 2021, the applicant should lodge his written submissions on or before 9 June 2021.  He failed to do so.  The Registrar further directed that in the event the applicant failed to lodge his written submissions by that date, he will be deemed to have abandoned his right to rely on written submissions. 

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper based on the available documents and materials.

Background

5.  The applicant is a national of India. He arrived at Hong Kong as a visitor on 8 November 2009.  He did not depart and overstayed since 23 November 2009.  On 16 November 2009, he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was refused by the Director on 15 September 2010.  On 2 October 2013, he lodged his non-refoulement claim on the basis that if refouled, he will be harmed or even killed by the people from the Shriomani Akali Dal (“SAD”) due to a land dispute.  The factual background of this case was succinctly summarized by the Judge in [3] – [12] of the Form CALL-1 ([2021] HKCFI 878).

6.  By a Notice of Decision dated 20 March 2017, the Director assessed the applicant’s claim on BOR 2 risk[1], BOR 3 risk[2] and persecution risk[3], and determined it against him.

7.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 22 and 24 October 2018.  By its decision dated 7 December 2018, the Board dismissed the appeal.  For the reasons set out in [53] to [100] of the Board’s decision, the Board did not accept the applicant was a truthful witness due to inconsistencies within his own evidence, in particular, the applicant’s claim that his father was involved in a rival political group that supported the idea of independence for Punjab, and that due to his father’s political role, he was harassed, harmed and forced to sell his land to SAD which formed the core of his case. The Board noted inconsistencies such as his claim that his father had disappeared between 1984 to 1993, and yet he was born during this period.  The Board concluded that he would not face a real risk of harm from SAD upon his return.  For the aforesaid reasons, his non-refoulement claim failed on all applicable grounds.

Decision of the court below

8.  On 28 December 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  In his supporting affirmation, he only complained that the Board’s decision was unfair and unreasonable.

9.  The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  By his decision made on 7 April 2021, the Judge refused to grant him leave to apply for judicial review and the reasons for the refusal were set out at [21] – [24] of the Form CALL-1 as follows:

“21. In judicial review, the task of 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 duty of the TCAB. In general, this court would not interfere.

22. The applicant had not pointed out any error in the decision of the TCAB. In my view, the adjudicator had fairly conducted the oral hearings. The applicant was given a fair chance to clarify some aspects of his claim as he wished. It was his election not to give evidence on other details.

23. The analysis by the adjudicator was thorough and correct. I agree with her that there were fundamental inconsistencies in the applicant’s evidence. He was not truthful.

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

Appeal to this Court

10.  On 16 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision in which he complained that the Judge’s decision is unfair and unreasonable, his points were overlooked and fair assessment was not done.

Legal principles

11.  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 on appeal, which operates as a re-hearing, 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.  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

12.  The applicant’s complaint that the Judge’s decision was unfair and unreasonable is a vague and general assertion without particulars and elaboration, and is not a valid ground of appeal. 

13.  As repeatedly emphasised by this Court, and as rightly explained by the Judge in his decision, the court would only intervene if there is error in law or procedure or if the decision is irrational, and the court would not assume the role of the Board to reconsider the facts or to reassess the evidence. We agree with the Judge that the Board had fairly assessed the applicant’s case and its analysis was thorough and correct and there is no basis for intervention. 

14.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

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