NARENDRA SINGH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 91/2019

[2019] HKCA 736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 91 OF 2019

(ON APPEAL FROM HCAL 731 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

1.1  This is an appeal by Mr Narendra Singh (“the appellant”) from an order of DHCJ Josiah Lam (“the judge”) given on 20 February 2019 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)[1].

1.2  The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 16 April 2018 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decisions of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of India born in 1972 in Punjab, India.  From 1992 to 1995, the appellant worked as a textile mechanics and from 1995 to 2007 he ran a textile business in Amritsar.  He claimed he did not work from 2007 to 2011.  He entered Hong Kong illegally on 11 November 2011 and was arrested by the police on 8 July 2013.  He first raised non-refoulement claims in April 2014 by way of a written representation and on 10 January 2017, he filed a non-refoulement claim form.    

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s decision and in gist in the Judge’s Decision.  Put briefly, the appellant’s claim was based on his fear that if he was returned to India, he would be harmed or even killed by the people of Bharatiya Janata Party (“BJP”) and Shiromani Akali Dal (“SAD”) because he witnessed a murder committed by 2 men who belonged to BJP and SAD.    

-  In around 1994, the appellant supported Congress Party (“CP”).

-  In around 2007, the appellant attended a rally organized by CP about 2 to 4 days before the election.  There were around 100 BJP and SAD people at the rally who had a fight with CP supporters.  He witnessed an attack by BJP and SAD people on a CP party worker, Harjit Singh (“Harjit”).  Harjit suffered severe injuries and died.  The appellant and a CP member reported the case to the police.  Later, he identified 2 suspects at the police station, Balkar Singh (“Balkar”) and Sardar Singh (“Sardar”).

-  The appellant then received a threatening phone call from an unknown person.  He believed the threat was from the BJP and SAD people.  He did not report the call to the police as BJP and SAD were in power and he believed that the police would only help those who were in power. Later, he received threatening phone calls from different BJP and SAD people once every 2 to 3 days.

-  Despite the calls, the appellant was prepared to attend the trial of the murder case as a witness.  However on the way to the court one morning, he was attacked by 5 to 6 unknown men.  He sustained minor injuries and escaped to his sister’s place in New Delhi.  The appellant received a call from his wife informing him that the BJP and SAD people had come to his home to search for him and had threatened to kill him. 

-  The appellant said he learnt Balkar and Sardar were released as he was absent from the court.

-  A year later the appellant returned home after his wife told him that the BJP and SAD people were no longer looking for him.  However, the BJP and SAD people reappeared after a month.  So the appellant went to New Delhi again and stayed there for more than 2 years.

-  The appellant missed his family and returned home in 2010. On one occasion he was attacked by 5 to 6 unknown men with swords and hockey sticks.  He was injured but he did not go to the hospital.  Subsequently, he received threatening calls from an unknown man.  The appellant was frightened, so he took his wife and children to New Delhi.  After receiving a call in which the caller said he knew where he was staying, he went to Kalkaji and stayed there for 3 to 4 months.

-  The appellant left India on 15 October 2011 and went to Thailand and Malaysia.  After a short stay, he arrived in Hong Kong on 11 November 2011.  He was told by his wife that the BJP and SAD people still continued to search for him.

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1  What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2  “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3  “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4  What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decision

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director concluded that the appellant had failed to make out his claim as a matter of fact.  The Director rejected the appellant’s claim for reasons set out in a decision given on 28 February 2017 in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk” (“the Director’s Decision”).

The TCAB’s Decision

7.1  The appellant then appealed to the TCAB.  He was present at the appeal hearing and an interpreter was engaged to assist him.  At the hearing, the TCAB asked the appellant various questions about the murder he allegedly witnessed, the prosecution of the two alleged murderers and the alleged attacks on him personally.  The TCAB carefully considered the appellant’s claims and found that he was not a witness of truth.  The TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”). 

7.2  Essentially, the appellant had no documentary evidence at all that the alleged murder and trial ever took place.  Even though he had left India for some time, his wife was still living there and could have found relevant materials to support his story.  The TCAB also had serious doubts as to whether the trial could have taken place so speedily after the alleged incident as the appellant claimed.  If it did take place, given that BJP and SAD were in power, that showed that the authorities did not favour the parties in power, and yet the appellant did not report any of the attacks because he said the authorities favoured those parties.  The TCAB also found a number of inconsistences in his allegations of attacks on him afterwards (such as what weapons were used, and the years in which he left Amritsar), and did not accept that the appellant would have gone to live in New Delhi without his wife and children for 4 years without working there at all as he alleged.  In any event, it was highly likely that the case against the two perpetrators would have been dismissed by now, some 11 years after the alleged incident. 

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The appellant set out his grounds in his affirmation in support which were mainly related to the lack of legal advice and language assistance for preparation of his appeal to the TCAB.  In addition, he complained that the TCAB’s Decision was unfair and irrational.

The Judge’s Decision

9.  The appellant appeared at the hearing before the judge.  As mentioned earlier, the judge refused leave for reasons set out in the Judge’s Decision, in particular

“33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising 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.”

35. The Applicant complained he did not have legal advice to help him for the appeal.

36. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 28 February 2017. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

37. The Applicant complained he did not have language assistance to help him with his appeal to the Board.

38. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

39. The Applicant complained the Adjudicator’s decision was unfair and irrational.

40. The Adjudicator considered it would not be difficult for the Applicant to produce some evidence of the alleged murder of Harjit Singh. Yet, there was no evidence to support the Applicant's bare assertion. The Adjudicator studied the Applicant's case in detail and referred to relevant country-of-origin information (“COI”). He found there were unconvincing and inconsistent features in the Applicant’s allegations. The Adjudicator concluded the Applicant was an untruthful witness and his claim was a fabricated one. The Applicant had the burden to prove he faced risk that warranted non-refoulement. He failed to do so. The Adjudicator’s finding, conclusion and decision were not irrational.

41. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. He considered the Applicant's claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated.

Conclusion

42. The Applicant’s complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 25 February 2019, the appellant appealed the judge’s order to this court.  The appellant stated the following grounds in the Notice of Appeal:

“My life is [in danger] in my original country in India, that’s why I cannot go back to home country, could you please save my life.”

Legal Principles

11.  It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1  The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and I will not repeat them here.  

11.3  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellant making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

13.1  The grounds advanced by the appellant are vague and bare assertions.  He did not set out why his claim would have a reasonable prospect of success. 

13.2  The appellant’s allegations had already been thoroughly examined by the TCAB on the facts, and the judge was correct in holding that the TCAB was entitled to make the findings that it did.  As explained earlier, the appellant is not permitted to ask for yet another re-hearing of arguments on facts at this stage of the appeal process.

14.  We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.