SINGH SANTOKH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CACV 448/2021

[2022] HKCA 1479

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 448 OF 2021

(ON APPEAL FROM HCAL NO 2684 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.  On 10 September 2021, Deputy High Court Judge Bruno Chan (“the Judge”)  refused to grant leave to the 1^st and 2^nd applicants (collectively called “the Applicants”)  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 22 November 2018 in which the Board upheld the decision of the Director of Immigration (“the Director”)  dated 29 November 2017 rejecting the Applicants’ non-refoulement claims.

2.  On 20 September 2021, the Applicants filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The 1^st Applicant (“A1”)  is a national of India. The 2^nd Applicant (“A2”)  (born on 1 February 2001)  is his younger daughter.  The two of them, together with A1’s wife and elder daughter, arrived in Hong Kong on 17 December 2016 with permission to remain as visitors up to 3 January 2017.  They did not depart and instead overstayed. They surrendered to the Immigration Department and jointly raised a non-refoulement claim on 4 & 6 January 2017 alleging that if refouled, they would be harmed or even killed by A1’s paternal uncle Singh (“Uncle Singh”)  with whom A1 had a dispute.  The allegation was that Uncle Singh wanted to become a partner in A1’s garment and mobile phone business, but A1 had refused.  The factual background was succinctly summarized by the Judge in [2] – [3] of the Form CALL-1 ([2021] HKCFI 2723).

4.  By a notice of decision dated 29 November 2017, the Director rejected the claims of the Applicants and the rest of their family on all applicable grounds and determined the claims against them.  The notice of decision covered the grounds of BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

Board’s decision

5.  On 8 December 2017, the Applicants and the rest of their family appealed to the Board against the Director’s decision. On 9 August 2018, A1’s wife died. 

6.  An oral hearing was held before the Board on 10 October 2018 to consider the claims of A1 and his daughters.  At the time, A2 was 17 years old.  For the reasons set out in [46] to [52], the Board found serious doubts over the credibility of A1’s account of events.  A1 demonstrated little if any understanding of Uncle Singh’s business proposal.  The Board found it unconvincing and implausible that, without any attempts to meet for negotiations, Uncle Singh would just resort to intimidation, engaging someone to assault A1, and vandalizing A1’s business, when he (Uncle Singh)  wanted to become A1’s business partner.  Besides which, A1 has since closed down his business, so there was nothing left for Uncle Singh to join.

7.  A1’s credibility was further undermined by the fact that, despite his claimed fear for the safety of himself and his family in Nagar Patel, he left his family behind and left India to explore the situation in Hong Kong.  Although the Board accepted that A1’s shop was vandalized by thugs on one occasion in October 2015, on the totality of the evidence it was not accepted that it was an attack which was targeted at A1 or his business, or was linked to Uncle Singh, and the attack was considered to be a one-off opportunistic crime.  In any event, A1 and his daughters could safely relocate to other parts of India, even within the locality of Nagar Patel, without undue hardship, and there is reasonable state protection upon their return to India.  For the aforesaid reasons, A1 and his daughters’ claims for non-refoulement protection failed on all applicable grounds.

Decision of the court below

8.  On 27 November 2018, A1 and A2 (but not the elder daughter)  jointly filed a Form 86 for leave to apply for judicial review of the Board’s decision.  No ground for seeking relief was given in their Form 86.  In A1’s supporting affirmation, he just claimed that he and A2 cannot go back to their home country as their lives would still be in danger. The Applicants did not request an oral hearing.

9.  A2 became an adult on 1 February 2019.  After she attained majority, she did not take any additional steps regarding her application for leave to apply for judicial review. 

10.  The Judge disposed of the application on paper.  At the time when the Judge considered the Applicants’ application for leave to apply for judicial review, A2 was no longer a minor and the Judge did not deal with her case as a minor.  However, he did not take into account the fact that A2 was still a minor when the Board made its determination.

11.  In the decision dated 10 September 2021, the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [8] – [12] of the Form CALL-1 as follows:

“8. On 27 November 2018 A1 and A2 but without the elder daughter jointly filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he just repeated their claim that they cannot go back to their home country as their lives would still be in danger but without putting forth any proper or viable ground for their intended challenge, nor did they request any oral hearing for their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

9. 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.

10. In the Applicants’ case, the Board rejected their claim essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 53 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

11. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim if true is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  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 Applicants’ claim.”

Appeal to this Court

12.  On 20 September 2021, the Applicants filed a Notice of Appeal against the Judge’s decision.  Although the purported grounds of appeal used the singular form rather than the plural, we shall take it that they purported to be both applicants’ grounds.  However, the grounds only stated that he was dissatisfied with the Judge’s decision as it was away from facts and reality of his case, and there was no transparency in the decision.

13.  Pursuant to the directions of Registrar of Civil Appeals made on 20 September 2021, written submissions were filed on 28 September 2021.  Again the singular form was used rather than the plural, but we shall take them as being both applicants’ submissions. The following were stated:

(1)  Many aspects of his case were ignored and all the decisions were not transparent.  The actual situation of his country is different from what the decision-makers think.

(2)  It is dangerous for him to return to his country. His life would be worse due to his enemies.

(3)  Torture and death are common in police custody for innocent people.  The police just support those who give bribes.

(4)  He urged the court to help him stay in Hong Kong.

Legal principles

14.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in cases such as 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 purposes 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 into account 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

15.  We note that at the time of the hearing before the Board, A2 was still a minor.  As the Board is the primary decision-maker, rather than the judge hearing the application for leave to apply for judicial review, the hearing before the Board is the relevant time when separate consideration should have been given to any minor-specific grounds.   

16.  In Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971, [45] – [49], a judgment of the Court of Appeal which was given on 27 November 2020, it was held that non-refoulement claims by minors are separate claims from those of their parents, and in principle, the decision-maker should consider a minor’s claim by reference to her personal circumstances, even if the claims were based on the same set of primary facts.   

17.  In the present case, the Board noted in its decision that in A2’s non-refoulement claim form, she only referred to A1’s claims, and to nothing further [20].  A1’s claims were based on a commercial dispute with Uncle Singh which did not involve A2, and those claims were rejected on the facts by the Board.  Further, after attaining majority, A2 has not sought to add any further materials regarding her personal circumstances which might suggest that the Board’s conclusion would have been different. 

18.  In Jasvir Singh and Others [2021] HKCA 53, this court (Lam VP as he then was and Au JA)  held at [33] that if the court is satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim consistently with the principles set out in Fabio Arlyn Timogan, and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit.  In such a case, the court can dismiss her leave application notwithstanding that she has not been legally represented before the Board.  That was the situation in the present case when the matter went before the Judge.    

19.  As for the Notice of Appeal before this court, there are no meaningful grounds of appeal, and no errors in the Judge’s decision have been identified.    

20.  As mentioned earlier, the Board had rejected the application on the issue of credibility as A1’s evidence lacked details, the claims were unconvincing and implausible, and the Board was not satisfied that the Applicants would face any or any real risk of harm upon their return to India.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.  

21.  Having considered the materials before us, we are of the view that the Judge’s observations and conclusions are fully justified.  We agree with the Judge that leave to apply for judicial review should not be granted.

22.  For all these reasons, we dismiss the Applicants’ appeal.