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

CACV 287/2023, [2024] HKCA 6

On Appeal From [2023] HKCFI 2234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 287 OF 2023

(ON APPEAL FROM HCAL NO 1136 OF 2019)

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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 an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 11 September 2023, by which the Deputy Judge refused to grant the extension of time to the applicant and dismissed his application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 2234).

2.  The intended judicial review is to challenge the decision of the Director of Immigration (“the Director”) dated 8 June 2018 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”) and the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 11 January 2019 (“the Board’s Decision”) dismissing the appeal against the Director’s Decision.

Background

3.  The applicant is a national of India. The applicant claimed to have entered Hong Kong illegally by boat on 1 January 2016. He surrendered to the Immigration Department for illegal remaining in Hong Kong on 6 January 2016. By a written submission dated 16 May 2016, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed and / or killed by his paternal uncle, Nachitar Singh, due to a land dispute where the applicant’s father distributed a piece of land equally among the applicant and his two elder brothers and Nachitar later tricked the applicant’s brothers in transferring their portions to him at a smaller sum. Factual details of the applicant’s claim were concisely summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

4.  By the Director’s Decision, the Director rejected the applicant’s non‑refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

5.  The applicant then appealed against the Director’s Decision to the Board on 21 June 2018. He attended an oral hearing before the Board on 12 October 2018. In essence, after considering the evidence, the Board was of the view that the applicant was not a witness of truth. The Board noted that it was unreasonable that the applicant’s brothers never informed their family of transfer of lands to Nachitar and the applicant was vague as to his uncle’s background. The Board also considered it extremely unlikely that the applicant would have been kept for 10 ‑ 12 days in hospital. The Board also noted that the applicant failed to provide any documentary proof of the land ownership. In the premises, based on the inconsistencies and problematic evidence, the Board rejected all the applicant’s allegations and found that the applicant would not face any real or substantial risk of harm upon refoulement. In any event, the Board further held that internal relocation would be open to the applicant. Accordingly, as the applicant’s claim failed on all applicable grounds, the Board dismissed his appeal.

The Leave Decision

6.  On 29 April 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision. By that time, the applicant was 18 days late in filing his application. As summarised at [13] of the Leave Decision, the applicant raised the following grounds of review against the Board’s Decision:

(1)  The Board’s Decision is wrong because his right to life is not protected.

(2)  The Board had failed to take into consideration the issue of state acquiescence in his case.

(3)  The Board had cherry picked those country of origin information against his case.

(4)  The Board had not considered the corruption and incompetency of the administration of his country.

(5)  The Board had not attained high standards of fairness.

7.  The Deputy Judge heard the matter on 6 March 2023. The applicant attended the oral hearing in person with the assistance of a Punjabi interpreter.

8.  By the Leave Decision, the Deputy Judge refused to grant extension of time to the applicant and dismissed his application for leave to apply for judicial review. His reasons were set out at [14] ‑ [21] of the Leave Decision:

“14. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. He has given no explanation for his delay and his application can be dismissed for this reason alone. However, I shall first consider the merits of the applicant’s case.

15. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before the Court, the applicant confirmed that the hearing before the Board in the Lai Chi Kok reception room was fair. But he needs some time to get the documentary evidence.

17. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) … …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.’

18. As to the grounds in paragraph 13, they do not advance the applicant’s application. They are bare assertions of his opinions without evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

‘20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].’

19. There is no valid reason to challenge the Board’s Decision.

20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21. I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

9.  On 15 September 2023, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:

“… the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 12 October 2023 and the directions of this court on 19 October 2023, the applicant lodged his written submissions on 25 October 2023. In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim. The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision. He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly. It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case. More importantly, none of his submissions identified any error in the Leave Decision.

11.  The hearing of the appeal was held on 5 December 2023. A Punjabi interpreter was present to provide language assistance. However, the applicant did not appear at the hearing despite that he has been duly informed of the hearing date and time by the Notice of Hearing dated 19 October 2023. The court’s clerk had also attempted to call the applicant at the hearing for a few times but could not reach him. The court had waited for 30 minutes but the applicant still had not turned up. In these circumstances, we are satisfied that we should proceed to deal with this appeal on paper as follows.

Discussion

12.  The relevant legal principles governing appeals in non‑refoulement cases are set out 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’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

14.  At the outset, all of the applicant’s allegations are vague, bare contentions. Although he disagreed with the Leave Decision, nowhere in his Notice of Appeal or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision. Accordingly, his submissions are plainly not proper grounds of appeal. On this basis alone, his appeal must fail.

15.  Further, general assertions of his fear if refouled do not constitute proper grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28]. More importantly, as repeatedly emphasised by the Court of Appeal, it is well‑established that the assessment of evidence, Country of Origin Information and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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 Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].

16.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.