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

CACV 272 /2020

[2021] HKCA 16

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2020

(ON APPEAL FROM HCAL NO 461 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 9 July 2020^[1]. By his decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. This appeal is dealt with on paper because of the failure of the applicant to lodge a skeleton argument as directed by the Registrar of Civil Appeals as mentioned below.

2.  The applicant is a national of India.  He is 32 years old.  He came to Hong Kong as a visitor on 28 November 2013.  He later overstayed and surrendered to the Immigration Department on 21 January 2014. He lodged a non-refoulement claim which was received by the Immigration Department on 12 March 2014.  His claim was made on the basis that he would be harmed or killed by his paternal uncle for causing serious injuries to his uncle’s son during a fight.

The Director’s decision

3.  By a Notice of Decision dated 27 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5].

4.  The Director considered that the past ill-treatment inflicted upon the applicant did not attain the requisite minimum level of severity and that his uncle did not have a genuine intention to harm or kill him.  The Director further assessed that the risk of harm is small if the applicant is returned to India if he relocates to a place other than his own village.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 29 November 2017.  The Board concluded that there were serious credibility problems and considered that there is no real risk that the applicant will experience any harm if he returns to India.  Thus, the Board held that the applicant is not qualified for non‑refoulement protection and rejected the appeal on 7 March 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 20 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7.  His grounds for his intended judicial review are that the decisions of the Director and the Board are incorrect and they have failed to consider the realities in India.

The judge’s decision

8.  The judge held that there is no procedural unfairness or error of law in the process of the applications before the Director or the Board and in their decisions, or any failure on their part to apply high standards of fairness in their assessment of the claim.  As the applicant does not have a reasonable prospect of success in his intended judicial review, the judge dismissed the leave application on 9 July 2020.

Grounds of appeal

9.  The applicant stated the following grounds of appeal in the notice of appeal:

(1)  He will face hardship if he is to return to his home country.

(2)  The Board has significantly relied on the source of news which is not officially recognized or is simply hearsay.  It has also relied on some cases which are outdated.  The lack of credible source of information has resulted in the making of groundless speculations.

Non-compliance with order for lodging of skeleton argument

10.  Directions were given by the Registrar of Civil Appeals on 21 October 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

11.  A notice of hearing dated 12 November 2020 informing the applicant that the appeal was scheduled to be heard on 5 January 2021 was sent to his address by registered post.  The notice was unclaimed and returned to the court.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at §15).

12.  The appeal was scheduled to be heard on 5 January 2021.  The applicant failed to lodge skeleton argument by the prescribed deadline on or before 8 December 2020.  As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  The court informed the applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal by letter dated 9 December 2020. This letter and the earlier letter conveying the Registrar of Civil Appeals’ directions of 21 October 2020 were sent to the applicant by ordinary post . They have not been returned by the Post Office.

Legal Principles

13.  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.

14.  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 Country of Origin Information 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.

15.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

16.  The applicant’s grounds of appeal are bare assertions without any elaboration, particulars or evidence in support.  In particular, he failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

17.  There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.