DHILLON MANJIT SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMNT CLAIMS PETITION OFFICE

CACV 193/2022

[2022] HKCA 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 193 OF 2022

(ON APPEAL FROM HCAL NO 212 OF 2019)

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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 3 May 2022, DHCJ K.W. Lung (“the Judge”)  refused 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 (“the Board”)  dated 11 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 25 July 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 10 May 2022, the applicant filed a Notice of Appeal against the Judge’s decision. 

3.  In compliance with the directions of the Registrar of Civil Appeals given on 31 May 2022 and Practice Direction 4.1, the applicant lodged his skeleton argument on 11 July 2022. 

Background

4.  The Applicant is a national of India.  He entered Hong Kong illegally on 24 December 2015 and surrendered to the Immigration Department on 28 December 2015.  He lodged a non-refoulement claim by way of written representations dated 13, 19 and 25 April 2016 alleging that if refouled, he would be harmed or killed by his uncle Jagdish Singh over a land dispute. The factual background of this case is succinctly summarized by the Judge in [5] of the Form CALL-1 ([2022] HKCFI 1208).

5.  By a Notice of Decision dated 25 July 2017, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

6.  The applicant lodged an appeal to the Board against the Director’s decision.  The appeal was heard on 16 November 2018 and by the decision dated 11 January 2019, the Board rejected the appeal/petition and confirmed the Director’s decision.  Having considered the applicant’s evidence, for the reasons set out at [29] to [36], the Board found that the applicant’s claim was not credible and he was not a truthful witness.  The Board accepted that although there might be a land dispute, it was private in nature and there is no evidence to suggest any state instigation or acquiescence.  There was no explanation why he, but not his father, was targeted by his uncle when the land was held by his father.  Although the uncle was after the land, the applicant alleged the uncle would still kill him if he gave up the land.  The allegation that his uncle was involved in a traffic accident that caused the death of his brother was unreliable with inconsistent hearsay statements.  The allegations of his uncle’s attacks on him were also contradictory.  Having said his uncle had left him for dead and would have killed him had he known he was still alive, he also said his uncle told him he would come back to finish him off. 

7.  Further, relevant country of origin information showed that there is reasonable state protection, and internal relocation is a viable option as it was not accepted that his uncle was so powerful and influential as to be able to locate the applicant throughout the whole of India.  For the aforesaid reasons, his non-refoulement claim failed on all applicable grounds. 

Decision of the court below

8.  On 23 January 2019, the applicant filed his Form 86 for leave to apply for judicial review of the decision of the Board.  He did not provide any ground for seeking relief in his Form 86 or in his supporting affirmation save for saying that he was not satisfied with the decision given by The Board because he still has a problem in his own country.

9.  The applicant did not request for an oral hearing and the Judge disposed of the application on paper. By the decision dated 3 May 2022, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons for the refusal were set out at [14] – [19] of the Form CALL-1 as follows:

“14. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16. 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.’

17. The applicant has not raised any valid ground to challenge the Board’s Decision. The Board has given reasons in support of its Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Appeal to this Court

10.  On 10 May 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following grounds of appeal:

“I am not agree with the decision of the Court of First Instance, because if I return back to my home country, I will be killed by my enemy. [The Board] and [the Director] has significantly relied on source of news which are not officially recognized. The lack of credible source of information has resulted in them making groundless speculation.”

11.  In his written submissions, he stated that he did not agree with the decisions made by the Judge, the Board and the Director and he advanced the following grounds of appeal:

(1)  The Judge was wrong as a matter of law in not having applied the principle of irrationality to the decision made by the Director and the Board.

(2)  High standards of fairness are required in determination of a torture claim on the part of the decision maker.  But the Judge reviewed the matter lightly.

(3)  The decision has the effect of finally disposing of the applicant’s torture claim and making him liable to be removed.  This has real and significant implications for his substantive right not to be subject to torture and his right to non-refoulement protection. 

(4)  The Judge was wrong as a matter of law in not having applied the principle of procedural unfairness to the decision of the Director, whereby the Director and the Adjudicator were required to give reasons justifying their decisions.

(5)  Despite his severe problem in his country and his submission of all the proof for his claim, the Judge did not give greater care to his case and disappointed him.

(6)  The Judge did not analyze his case properly.

(7)  The Judge’s decision was unreasonable.

(8)  The Judge might not appreciate the reasons why the Director and the Board rejected his claim.

(9)  The Adjudicator had failed to give sufficient chance to him to arrange relevant evidence for his appeal.

(10)  It must be kept in mind that the life and limb are in jeopardy and his fundamental human right not to be subject to torture is involved, which is required by high standards of fairness.

(11)  He will face hardship if he were to return to his home country and the Board had significantly relied on the source of news which is not officially recognized, or is simply hearsay. 

Legal principles

12.  In assessing the merit of the appeal, we have considered the legal principles set out by this Court in 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 account of 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

13.  The applicant failed in his Notice of Appeal and written submissions to provide any valid ground of appeal against the Judge’s decision or to identify any specific errors or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578.

14.  The Board rejected the applicant’s case on the issue of credibility as his evidence was evasive, inconsistent, based on hearsay evidence and his own speculation.  Assessment of evidence is within the territory of the Board and there was no error of law or procedural unfairness or other irregularities in the Board’s decision that warrant the court’s intervention.

15.  Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  The Judge’s decision had duly set out the reasons why the applicant’s case was rejected by the Director and the Board and even though the applicant had failed to advance any ground for relief, the Judge had given full reasons for dismissing the applicant’s leave application.  We are of the view that the Judge’s findings and conclusions are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

Order

16.  For the above reasons, this appeal is dismissed.