MATHRIYE MASAAL KARMJEET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 409/2019

[2019] HKCA 1397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 409 OF 2019

(ON APPEAL FROM HCAL NO 1571 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K. W. Lung on 15 August 2019^[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a 26-year-old national of India.  He came to Hong Kong as a visitor on 20 June 2014 and was allowed to stay until 4 July 2014.  He then overstayed and was arrested by the police on 3 August 2014.  He lodged a non-refoulement claim on 15 August 2014 on the basis that he would be tortured or killed by the family members of his girlfriend Saman as they were opposed to his relationship with her.  

The Director’s decisions

3.  By a Notice of Decision dated 18 May 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

4.  The Director considered that the low frequency of past ill-treatment and the fact that the applicant’s family members remained unharmed during his absence indicate that Saman’s family did not show any real intention to seriously harm or kill the applicant.  Besides, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected. 

5.  By a Notice of Further Decision dated 10 July 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk^[5].

The Board’s decision

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 24 April 2018.  The Board considered that it is most unlikely that the applicant will be killed and did not accept that Saman’s family had any great influence with the police as the applicant was not charged with any offence arising out of his attack on Saman’s brother.  The Board also assessed that the risk, if any, could be avoided by internal relocation within India.  Therefore, the appeal was rejected on 20 July 2018. 

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 8 August 2018 to seek leave to apply for judicial review against the decision of the Board.

The judge’s decision

8.  On 15 August 2019, the judge dismissed the application for leave to apply for judicial review as the intended judicial review has no reasonable prospect of success.

Grounds of appeal

9.  The applicant filed a Notice of Appeal on 5 September 2019 against the judge’s decision and stated therein the following as his grounds of appeal:

“I am not satisfied with the decision because I have problem in my country and at this moment I can’t go back to my country. Please help me to stay until I have [no] problem.” [sic]

10.  In his written submissions, he submitted that:

(1)  His life is not safe in his country.  His enemies are still looking for his whereabouts.  When they see him, he will be killed by them.  He cannot survive in front of them.  Even the police cannot protect him from them.  His enemies have lots of manpower and strong political support which makes them so powerful.

(2)  Death and torture in police custody of innocent persons are so common in his country and people who are responsible for this always enjoy freedom due to their power.  Even if sometimes  the police arrest the culprits, they can bribe the police and come out due to the corrupt system.

11.  The applicant did not put forward any of the above grounds in the original leave application.

Legal Principles

12.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

13.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

14.  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.

Analysis and disposition

15.  An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below^[6].  Therefore, the Court of Appeal will not entertain the applicant’s new grounds which were not raised in the original leave application at the Court of First Instance.

16.  In the original leave application before the judge, the applicant confirmed that he had a fair hearing before the adjudicator and he had no comments on the findings of the Board upon the enquiry of the judge.  In this appeal, the applicant has not pointed out any errors of the judge in assessing the Board’s decision. 

17.  For the above reasons, there is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  Thus, the appeal should be dismissed.

[1] [2019] HKCFI 2038

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[4] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[5] This refers to the risk of being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.

[6] Re Qadir Sher [2018] HKCA 160 at §11