HARPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 493/2024, [2025] HKCA 248

On Appeal From [2024] HKCFI 2026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 493 OF 2024

(ON APPEAL FROM HCAL NO 587 OF 2024)

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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 Bruno Chan (“Judge”) on 8 August 2024[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 14 March 2024. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 26 August 2015 and 14 February 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The Applicant is a 37-year-old national of India who arrived in Hong Kong on 23 October 2013, and when he was refused entry by the Immigration Department, he raised a non-refoulement claim for protection on the basis that if he returned to India he would be harmed or killed by certain local supporters of the political party Shiromani Akali Dal (“SAD”) as he supported their rival Indian National Congress (“INC”) and refused to join SAD. He was subsequently released on recognizance pending the determination of his claim.

3.  The applicant’s claim was initially assessed by the Director with reference to BOR 3 risk,[2] persecution risk[3] and torture risk[4] (i.e. without BOR 2 risk[5]). By notice of decision dated 26 August 2015, the Director rejected his claim.

4.  The applicant appealed to the Board against the Director’s decision, but his appeal was made after the 14-day period prescribed by Section 37ZS(1) of the Immigration Ordinance. By its written decision dated 31 December 2015, the Board refused permission for the applicant to file his Notice of Appeal out of time.

5.  On the Director’s own initiative, the applicant was invited to submit any further material he had for consideration of his claim under BOR 2 risk, to which he did not respond. By notice of further decision dated 14 February 2017, the Director rejected the applicant’s claim in relation to BOR 2 risk.

6.  The applicant then appealed to the Board against the Director’s further decision dated 14 February 2017. On 30 July 2018, the Board dismissed the applicant’s appeal and confirmed the Director’s further decision of 14 February 2017.

7.  On 10 August 2018, the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision on 30 July 2018, for which leave was subsequently granted. On 5 May 2023, both decisions of the Board were quashed by the Court of First Instance[6] and the applicant’s case was remitted to a differently constituted Board for fresh determination under all the applicable grounds.

8.  An oral hearing was held on 6 March 2024, during which the applicant gave evidence and answered questions from the Board. In its decision dated 14 March 2024, although the Board accepted the applicant’s claimed fear of harm from those local SAD supporters, it found no reliable evidence that he would be seriously harmed or killed given that he was just an ordinary INC supporter without any official post in the party. The Board also rejected that those SAD supporters would still have any adverse interest towards the applicant after all these years since he left the country. In any event, the Board found that both state protection and internal relocation to the cities of Lucknow or Pune would be viable alternatives. Accordingly, the applicant’s appeal was dismissed by the Board in relation to all applicable grounds and both decisions of the Director were confirmed.

The Judge’s decisions in the court below

9.  On 11 April 2024, 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. During the hearing on 23 July 2024, the applicant simply made a futile request with no justification for more time to provide further evidence in support of his case, without identifying what evidence he intended to provide.

10.  On 8 August 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out in [12] to [16] of the Form CALL-1 as follows:

“ 12. … in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

16. For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

11.  On 12 September 2024, the applicant filed a summons together with a supporting affirmation to apply for extension of time for filing a notice of appeal. The Judge noted that at the material time, it was the Court’s summer vacation so that the applicant was in fact not out of time as at 12 September 2024. Accordingly, in his decision of 7 November 2024, the Judge extended time for the applicant to file the Notice of Appeal within 14 days.

Appeal to this Court

12.  On 21 November 2024, the applicant filed his Notice of Appeal. In his stated grounds of appeal, he recited general legal principles related to high standards of fairness and Wednesbury unreasonableness. He also asserted that the Board had failed to properly assess his credibility.

13.  In his written submissions, the applicant alleged there was a breach of the “high standard of fairness” principle. He asserted that there was procedural unfairness because he was not given any legal advice or language assistance. The applicant further claimed that the COI relied on by the Board was not officially recognised or was simply hearsay.

14.  As the applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, we shall determine the appeal on the basis of the available documents and materials.

Discussion

15.  In assessing the merits 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.

16.  In the present case, the Board found no reliable evidence that the applicant would be seriously harmed or killed given that he was just an ordinary INC supporter without any official post in the party. The Board also rejected that those SAD supporters would still have adverse interest towards him given the lapse of time and that in any event, both state protection as well as internal relocation would be available. These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.

17.  Regarding the complaints about lack of language assistance and legal advice, we note that all the Court documents filed in this appeal and in the Court below were in English. It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary. Meanwhile, it has been repeatedly stated by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process 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: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11]. In any event, the applicant was legally represented in the initial preparation of his case by the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of his claim. We do not find the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness.

18.  As for the ground relating to the Board relying on unofficial COI, it is merely a bare assertion without any evidence in support.

19.  The applicant has failed to show any reasonably arguable public law error in relation to the Board’s decision. Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision. We are not satisfied that there is any error in the Judge’s decision.

20.  The applicant’s appeal is accordingly dismissed.