SANDEEP SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 404/2022

[2023] HKCA 38

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 404 OF 2022

(ON APPEAL FROM HCAL NO 50 OF 2020)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 23 September 2022, Deputy High Court Judge Bruno Chan refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 7 October 2022.

2.  The applicant is a national of India and is 32 years old. He entered Hong Kong on 6 July 2014 as a visitor and subsequently overstayed. He was arrested by the police on 7 August 2014. He raised a non-refoulement claim on 9 August 2014 on the basis that he is in fear of being harmed or killed by his uncles if he returns to India due to a land dispute.

The decisions of the Director and the Board

3.  The applicant’s non-refoulement claim was rejected by the Director of Immigration (“the Director”) by a Notice of Decision dated 19 May 2016 and a Notice of further decision on 15 August 2017. His appeal against the Director’s decisions was dismissed by the Board on 29 December 2017. A deportation order was issued against the applicant on 28 August 2018 and he was repatriated back to India on 14 September 2018.

4.  The applicant entered Hong Kong illegally on 17 December 2018 and was arrested by the police on 24 December 2018. When he was on remand, he requested to make a subsequent claim for non-refoulement protection. The Director allowed his request to make a subsequent claim on 14 May 2019.

5.  By a Notice of Decision dated 23 August 2019, the Director rejected the subsequent claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

6.  The Director assessed the level of future risk of harm from the applicant’s uncles is low and the alleged ill-treatment has not attained the requisite minimum level of severity for non-refoulement protection. The Director further considered the uncles’ influence is a localised and the applicant can stay away from their threat by relocation to other places in India. In addition, the Director held that the availability of state protection in India further lowers or negates the perceived risk.

7.  On 2 September 2019, the applicant appealed against the Director’s decision to the Board. He then wrote to the Board on 25 November 2019 to apply to withdraw his appeal. By a letter dated 6 December 2019, the Board directed that the appeal be withdrawn and confirmed the Director’s decision of 23 August 2019.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 6 January 2020 to seek leave to apply for judicial review against the Board’s decision. He stated in his supporting affirmation that his life is still in danger in his home country and his enemies will kill him if he goes back to India.

The judge’s decision

9.  The applicant attended the hearing before DHCJ Bruno Chan on 11 August 2022. The judge found no error of law, irrationality or procedural unfairness in the Board’s decision in allowing the withdrawal and dismissal of the appeal upon the applicant’s own request. The judge also considered there is no justification to afford the applicant with non-refoulement protection in Hong Kong. Thus, the judge concluded there is no prospect of success in the applicant’s intended judicial review and dismissed the leave application on 23 September 2022.

Grounds of appeal

10.  In the Notice of Appeal filed on 7 October 2022, the applicant stated that the decision has the effect of finally disposing of his torture claim and making him liable to be removed, so this entails real and significant implication for the applicant’s substantive right not to be subjected to torture and his right to non-refoulement protection.

11.  His further contentions in his written submissions may be summarised as follows:

(1)  It was the applicant’s mistake to withdraw his appeal which was made upon the advice of the duty lawyer who told him that if he did not withdraw the appeal, he would have to stay under custody until the final determination of the appeal. He now feels it is really a wrong decision and requests for reconsideration of his appeal.

(2)  The police and other departments in India do not want to help the applicant because of the power and influence of his uncles. His uncles are supporters of the Shiromani Akali Dal party which has close connection with the central government so they can locate the applicant very easily even if he stays in other places in India.

(3)  The applicant knew that if he came to Hong Kong unlawfully he would have to stay in the prison for a long time but he still chose to come because he will be killed if he stays in India.

Legal Principles

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.

13.  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.

Analysis and disposition

14.  The applicant did not put forward reasonably arguable grounds or any evidence to refute the Director’s findings in the decision refusing his request for a subsequent claim. In particular, the Director identified material inconsistencies between the applicant’s written submissions and oral evidence at the interview[6] but the applicant has not given any reasonable explanation for the inconsistencies. Besides, he failed to show there is anything wrong or it is procedurally unfair for the Board to allow the withdrawal of the appeal upon his own request. He also failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  This appeal is clearly devoid of merits. We therefore dismiss the appeal.