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

CACV 157/2024, [2024] HKCA 867

On Appeal From [2024] HKCFI 1096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 157 OF 2024

(ON APPEAL FROM HCAL NO 1491 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 19 April 2024[1] refusing 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 (“Board”)  dated 24 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 27 June 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant was a national of India born in 1996.  According to the record in his Indian passport, he entered Mainland China on 22 July 2015 and exited on 2 August 2015.  The applicant claimed that he entered Hong Kong illegally from Mainland China on 2 August 2015.  He surrendered to the Immigration Department on 5 August 2015.  On 8 September 2015, he lodged a claim for non-refoulement protection on the basis that if he returned to India, the family of Ms. Satveer Kaur (“SK”)  would harm or kill him as a result of their elopement.  The factual background of the applicant’s claim was set out at [5] to [17] of the Board’s decision.

3.  By notice of decision dated 27 June 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 15 November 2018, during which the applicant gave evidence and answered questions from the Board. The Board found that the applicant had only made bare assertions and provided no objective proof of his assertions.  Further, it found that the applicant provided material facts and information that were implausible or unreliable, which adversely affected his credibility.  The Board found that, inter alia, it was implausible that the applicant had no plans on their future living and livelihood after marriage in light of the risks of elopement, that the applicant did not make any effort to find out or to report the murder of his love, SK, and that the applicant applied for a passport in 2014 with no plans to travel when this was a luxury in consideration of his poor family circumstances.  Having considered the totality of the evidence, the Board was not convinced that the applicant came to Hong Kong due to the threat from the family of SK, that he had suffered any physical or mental pain and suffering as alleged, that the story of elopement or the murder of SK were true at all, or that SK’s family would expend all their resources to chase and kill him. Therefore, it found the applicant was not a genuine claimant as he was dishonest and unreliable.

5.  The Board proceeded to find that there was in fact no real risk of harm if the applicant returned to India, because there was no evidence to show that the applicant would suffer a foreseeable and real risk of severe pain and suffering or that there was state acquiescence as a result of the influence of SK’s family.  Also, the Board found that in any event state protection would be reasonably available to the applicant and that internal relocation would be viable for the applicant without undue hardship.

6.  By its written decision dated 24 May 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

7.  On 3 June 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply stated that the Board’s decision was not in line with reality and annexed the Board’s decision and a 2-page document.  In the document, the applicant submitted that the Board’s decision was not transparent because it was not based on facts, that the Board did not make sufficient inquiries, that honour killings were very common in India so the applicant was at risk too, that SK’s family was still looking for the applicant and they have strong relations with the current ruling political party, and that the police were corrupt.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 19 April 2024, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [17] to [22] of the Form CALL-1 as follows:

“ 17. 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).

18. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19. 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.’

20. The Board had given its reasons for not accepting the applicant’s factual evidence in the Board’s Decision. The Board had asked the applicant a number of questions in relation his elopement plan. It was not satisfied that the applicant had no plan for his marriage life after eloping. Further, the Board found:

‘ 31.(j)  The Appellant said that he applied for the passport in 2014 and got it issued on 13 June 2014. He got his passport before he met SK for the first time in July 2014. He fled his country on 22 July 2015. He said that when he applied for his passport, he had no plan to travel. Apparently, he came from a poor family and travel for leisure would have been a luxury. Why did he need a passport if he did not plan to go abroad?

32. The number and nature of inconsistencies and implausibility in his evidence were serious and have undermined its reliability. On the totality of the evidence, I am not convinced that he came to Hong Kong because of the alleged threat to kill or harm him by SK’s family. I am convinced that he had planned to leave his home country long before his meeting SK. I am not convinced that he had suffered any physical or mental pain and sufferings as he has alleged. I am not convinced that SK’s family was or is still chasing the Appellant all over his home country and wants to kill him or would have the resources to do so. The centerpiece of his story does not stand. I find him dishonest and unreliable, and that he is not a genuine claimant.’

21. Those grounds in paragraph 16 [i.e. the grounds submitted by the applicant in the document exhibited to the applicant’s affirmation] do not assist the applicant, as the Board did not accept his evidence on the facts of his claim. The applicant has raised no valid ground to challenge the Board’s finding of the facts of his claim.

22.  There is no reason that the Court should interfere with the Board’s finding of the facts. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Appeal to this Court

9.  On 23 April 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that the Judge did not consider the application for judicial review, that the Board did not make a correct decision and that the Board’s decision was wrong. 

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant has lodged written submissions in which he repeated the basis of his non-refoulement claim, and claimed that the Board made many errors, that the Judge did not look at his arguments and points raised, that there was no oral hearing before the Judge, and that the Judge did not find the Board’s error. There was no elaboration on what specific error or points were being referred to.

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant was not a genuine claimant as the Board did not accept there were any threats from SK’s family or that there was any elopement.  In any event, the Board further found that state protection and internal relocation would be viable options for the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  The applicant has failed to make out an arguable case of any public law error that would vitiate the Board’s decision.

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.  

15.  The applicant’s appeal is accordingly dismissed.