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

CACV 23/2020

[2020] HKCA 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 23 OF 2020

(ON APPEAL FROM HCAL 1981/2018)

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JUDGMENT

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

Introduction

1.  On 7 January 2020, Deputy High Court Judge K W Lung (“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 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 24 October 2016 rejecting the applicant’s non-refoulement claim.

2.  On 16 January 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is an Indian national.  He arrived in Hong Kong on 15 October 2015 together with his then wife, and they were permitted to stay as visitors until 29 October 2015. On 30 October 2015 he surrendered himself to the Immigration Department and raised a non-refoulement claim. 

4.  The applicant’s claim was based on the fear that, if he returned to India, he would be harmed or even killed by the family members of his then wife, in particular her father, brother and paternal uncle, because they objected to the applicant’s inter-caste marriage and the applicant was from a lower caste.  The factual background was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2020] HKCFI 113).  At that stage, it was a joint application by the applicant together with his wife and their child.

5.  By notice of decision dated 24 October 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  By that stage, the wife had withdrawn her application with the child.  She had left the applicant and returned to India with the child.  Thus, the Board was only concerned with the applicant’s own appeal.

7.  An oral hearing was held by the Board on 27 June 2018, during which the applicant was legally represented.  The Board found that there was no state involvement or official acquiescence in the violence or threats he had received, that this was a case of private animosity.  The Board did not accept that the applicant’s previous in-laws were still interested in locating him or were able to locate him over every part of India.  The Board also considered that there was state protection from the alleged harm and internal relocation was a viable option.  The Board dismissed the applicant’s appeal on 7 September 2018 on all the applicable grounds.

Decision of the court below

8.  On 19 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his affirmation in support of his Form 86, he raised the following grounds for seeking relief:

“ (1) My wife’s parents want to kill me

(2) The authorities in my country will not protect me

(3) Relocation is not possible as I am not safe.”

9.  The Judge held a hearing on 5 July 2019 at which the applicant attended in person.  At the hearing, the applicant told the Judge that the wife had divorced him and she had returned to India to live with her family.  Notwithstanding so, the applicant said the family would still take revenge on him.

10.  On 7 January 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [21] – [34] of the Form CALL-1 ([2020] HKCFI 113). Though the Judge found that the Board had failed to make some findings relating to the risk of harm, he was satisfied that there was no basis to disturb the Board’s conclusion on state protection and internal relocation.  He said at [31] to [33]:

“ 31. I consider that leave should be granted if not for the Board’s findings that state protection and internal relocation were available options to the applicant, which the applicant did not raise objection as the grounds of his application. These two options will be applicable even if the applicant is able to prove all his facts as he alleged. The Court of Appeal in the above case held:

‘ - if the risk of persecution or torture is a localised one, and it is not unreasonable, unsafe or unduly harsh for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT. [32]’

32. The applicant had been a taxi driver in other areas in India and there was nothing happened there. I have asked the applicant why those options were not effective for his safety if he returned to India. He said that he would be easily located because his wife’s brother was a high official in the police, which I find it hard to accept as he was only the official of a police station at a district in India, which is a big country of a population of over 1.3 billion. He was unable to give any other explanation.

33. The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.”

Appeal to this Court

11.  On 16 January 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which his stated grounds of appeal were

“ I am not satisfied with the decision because its away from facts and reality with are related with my case. There is no transparency in these decision. Please accept my application and allow me to process further my case.” [sic]

12.  In his written submissions of 6 July 2020, the applicant submitted that his life would still be in danger if he were to return to his country, there were matters related to his case which were ignored, and that conditions in his country are different from what the Board taken it to be.

13.  The applicant further submitted that his enemies are still looking for him and he cannot protect himself.  He said neither can the police protect him due to his enemies’ manpower and strong political influence.  He also said that death and torture in custody are common in his country, along with corruption and impunity.

14.  We heard the appeal on 15 September 2020 after inviting submissions from the Director of Immigration after reading the papers.  We are grateful for the assistance of Mr Chan who appeared on behalf of the Director.

15.  At the hearing, the applicant indicated that his problem had been dealt with and he wanted to go back to India.

Legal principles

16.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of 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].  For the purpose 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 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 (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.

(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.  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

17.  The applicant did not in his Notice of Appeal or his submissions provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

18.  Having read the Board’s decision, we are unable to agree with the Judge on his view regarding the lack of findings by the Board.  After taking account of the return of the ex-wife to India, the Board had specifically found at [18] to [19] and [24] of the decision that it rejected the applicant’s claim of threat from his ex-wife’s family.  Whilst the Board should have expressed its impression on the lack of credibility of the applicant at [3.2] and [17] in a more felicitous manner, the overall assessment of the Board was obviously a rejection of the applicant’s claim of risk.  In our view, adequate reasons were given by the Board.  With respect, the Judge did not have good ground for holding that the Board did not make the requisite finding on risk of harm.  

19.  We agree with the Judge that the applicant had not provided valid ground for impugning the Board’s assessment on internal relocation and state protection.

20.  The matters raised by the applicant in this appeal are only his assertions without concrete factual evidence supporting the same.

21.  In the circumstances, there is no basis for us to reverse the refusal of leave by the Judge and we dismiss the appeal accordingly.