RE MANDEEP SINGH

CACV 200/2024, [2024] HKCA 718

On Appeal From [2024] HKCFI 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 200 OF 2024

(ON APPEAL FROM HCAL NO 488 OF 2024)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 May 2024 ([2024] HKCFI 1233) (“the Leave Decision”) refusing his application for leave to apply for judicial review against the decision of the Director of Immigration (“the Director”) dated 26 February 2024, where the Director refused to allow him to make a subsequent claim after his previous claim was rejected by the Director and the Torture Claims Appeal Board / Non-refoulement Petitions Office (“the Board”).

2.  On 20 May 2024, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of India.  He first arrived in Hong Kong in late August 2014 as a visitor and then overstayed. After surrendering to the Immigration Department on 7 January 2015, he raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the family of his friend Rajesh in revenge as they blamed him for Rajesh’s death in a traffic accident (“the Previous Claim”).  Details of the applicant’s claim were summarised by the Judge at [1] ‑ [8] of the Leave Decision.

4.  By a Notice of Decision dated 21 May 2018 (“the Director’s Previous Decision”), the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Previous Decision to the Board.  By the decision dated 12 June 2020, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [5] of the Leave Decision:

“5. The Applicant’s appeal against the Director’s decision was dismissed by the Board on 12 June 2020 which also confirmed the Director’s decision after hearing the Applicant in evidence and submissions and upon finding material inconsistencies discrepancies and implausibility therein that it doubted the credibility of his claim of fear of revenge from the family of his deceased friend Rajesh that caused him to leave his country to come to Hong Kong to seek protection, and that in any event even if such claim were true or that the claimed risk were real that it arose from some private personal dispute between them without any official involvement that state/police protection would be available to the Applicant upon his return to India as well as reasonable internal relocation for him to move away from his home district to other parts of the country without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.”

6.  The applicant then filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision under HCAL 1317/2020.  Before his case was decided, he filed an affirmation on 8 October 2020 to “cancel” his application as it was safe to return to his home country. He was repatriated to India on 3 November 2020.  His leave application was then dismissed by the court on 21 January 2021 ([2021] HKCFI 185).

7.  Subsequently, in 2023 the applicant sneaked back into Hong Kong and was arrested by the police on 7 November 2023.  He wrote to the Immigration Department requesting to make a subsequent claim for non-refoulement protection.  In essence, he asserted that after being repatriated in November 2020 to his home village, he was attacked by Rajesh’s younger brother which caused him to suffer cuts and bruises over his body. Then, subsequently in less than two weeks, he was again attacked but he managed to escape without serious injuries.  Accordingly, he was fearful that there would be more attacks by Rajesh’s family and so he departed India again to come to Hong Kong for non-refoulement protection.

8.  On 29 November 2023, the Director required the applicant to provide further information and evidence in writing, which he did by letters respectively dated 29 December 2023 and 2 February 2024.

9.  By a Notice of Decision dated 26 February 2024 (“the Director’s Subsequent Decision”), the Director refused to allow the applicant to make a subsequent claim for the reasons as summarised by the Judge at [11] of the Leave Decision:

“11. By a Notice of Decision dated 26 February 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of his previous claim of fear of harm in revenge from Rajesh’s family over Rajesh’s accidental death, and that he failed to provide sufficient evidence in writing to satisfy an immigration officer that there has been a significant change of circumstances since his previous claim was determined, or that those changes when taken together with the material previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success given the unchallenged findings by both the Director and the Board in his previous claim of the availability of both state protection and reasonable internal relocation upon his return to India to negate any such risk even if it still remains real as alleged by the Applicant for his subsequent claim.”

10.  Pursuant to section 37ZR of the Immigration Ordinance (Cap 115), the applicant cannot appeal the Director’s Subsequent Decision to the Board.  See also Gurvinder Singh v Director of Immigration [2022] HKCA 775 at [7].

THE JUDGE’S DECISION

11.  On 18 March 2024, the applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Subsequent Decision.  No ground of review was advanced in his Form 86 and in his supporting affirmation, he merely stated that he was not satisfied by the Director’s Subsequent Decision without giving any intended ground of review.

12.  The applicant appeared in person in the oral hearing before the Judge on 22 April 2024 and a Punjabi interpreter was also present to provide language assistance.  On 7 May 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“12. On 18 March 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he just repeated his claim as before and that he is not satisfied with the Director’s decision as incorrect but without putting forward any proper ground for his intended challenge, nor was he able to do so at the hearing of his application.

13. As such and in the absence of any error of law or irrationality or procedural unfairness in the process of his request to the Director or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

14.  In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim which even on the factual basis of his own case is essentially the same as in his previous claim as correctly found by the Director, and given also the correct and unchallenged assessment by both the Director and the Board in his previous claim that the risk of harm from Rajesh’s family even if real is a localized one and that it is not unreasonable or unsafe for the Applicant to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection or to make a subsequent claim on the same factual basis, I am therefore not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.”

THIS APPEAL

13.  In his Notice of Appeal filed on 20 May 2024, he merely stated:

“DIRECTOR OF IMMIGRATION DID NOT GIVE ME PERMISSION TO APPEAL IN APPEAL BOARD. I CAME TO THE COURT JUST AFTER MY SUBSEQUENT CLAIM DISMISSED. IF I RETURN NOW I WILL DIE. FOR TIME I WANT TO APPEAL” (sic)

14.  Pursuant to the directions of the Registrar of Civil Appeals dated 20 May 2024, the applicant lodged his written submissions on 3 June 2024.  In those submissions, he reiterated the factual basis and procedural history of his non-refoulement claim.  He further complained that the Judge did not give him an oral hearing and that the points he raised were not considered by the Judge and that he did not agree with the Leave Decision.

DISCUSSION

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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’s decision, the appeal should be dismissed.  The court’s role is not to examine the decision maker’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(6)]).

16.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

17.  In our view, the applicant’s case is a non-starter. The applicant fails to identify or show with specific particulars any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  His allegations are general and vague without any specific particulars in support.  None of his allegations are proper grounds of appeal.  His appeal must fail on this basis alone.

18.  Furthermore, his allegation as to the lack of oral hearing is also factually wrong as an oral hearing was held before the Judge which the applicant attended.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  The Judge had considered the allegations raised by the applicant and given detailed reasons for his decision. We see no basis to disturb the Leave Decision.

19.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.