GURPREET SINGH v. TORTURE CLAIMS APPEAL BOARD

CACV 316/2021

[2021] HKCA 1358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 316 OF 2021

(ON APPEAL FROM HCAL NO 1313 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 8 June 2021, DHCJ Bruno Chan (“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 28 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 29 September 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds (the applicant having withdrawn his torture claim in 2013). 

2.  On 21 June 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

3.  The Applicant is a national of India.  He last arrived in Hong Kong on 26 June 2005 as a visitor and overstayed as from 11 July 2005.  He was arrested by the police on 5 May 2008 for some criminal offences for which he was subsequently convicted and sentenced to imprisonment.  Upon his discharge, he was referred to the Immigration Department for deportation and then he raised a torture claim[1] in early 2013 on the basis that if he were to return to India, he would be harmed or killed by his uncle and cousins over a land dispute in his home village.  After his torture claim was treated as withdrawn as he had failed to complete the torture claim form within the time limit, he then sought non-refoulement protection on other grounds. The factual background of this case was succinctly summarized by the Judge in [2] – [3] of the Form CALL-1 ([2021] HKCFI 1650).

4.  By a Notice of Decision dated 29 September 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4], and determined it against him.

5.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 18 May 2018.  For reasons given in its decision of 28 June 2018, the Board dismissed the appeal.  In its decision the Board found that the applicant’s claim is purely a dispute over  farmland in his home village between him and his uncle and cousins without any state or official involvement.[5] Although he claimed his father had been killed, the police determined that he had committed suicide.  There was no evidence supporting his allegation that the police had been bribed to arrive at that conclusion.  Despite some arguments and fights with his cousins, he did not sustain any serious injuries.[6]  State protection would be available to the applicant upon his return to India, and internal relocation was available as he had lived with his maternal grandparents for 3 years without incident, and it was unlikely that his uncle and cousins who were only farmers would have the influence or resources to locate him.[7] For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

6.  On 6 July 2018, the applicant filed his Form 86 for leave to apply for judicial review, with only the Director named as proposed respondent, but the decision in respect of which relief was sought was said to be “28/6/2018”, which was the Board’s decision rather than the Director’s decision.  In his supporting affirmation, he merely said that the decision disregarded his dangerous situation and he attached the Board’s decision as “Exhibit-2” of his affirmation.  It was therefore taken that he was seeking to judicially review the Board’s decision dated 28 June 2018.

7.  The Judge heard the application on 3 June 2021 and by his decision dated 8 June 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [12] of the Form CALL-1 as follows:

“10. 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.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of India, there is simply no justification to afford him 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 Applicant’s claim.”

Appeal to this Court

8.  On 21 June 2021, the applicant filed a Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he said:

“I am totally disagree with the decision made by Director of Immigration and the adjudicator of Torture Claim Appeal Board without knowing thoroughly how case was determined. It is not easy for me to appeal against the decision. I believe there should have been a proper and fair mechanism that allows unrepresented litigants to understand more about their claim.”

9.  In compliance with the Court’s directions of 13 July 2021, the applicant lodged his written submissions on 16 August 2021.  In his written submissions, he advanced the following:

(1)   He disagreed with the Director’s and the Board’s decisions and his case was determined unfairly. (Ground 1)

(2)   He urged the authorities to take into account the procedural unfairness and policy in disposing of his non-refoulement claim as quickly as possible. (Ground 2)

(3)   He was not fully informed of his rights nor was he given the opportunity to be heard with the necessary assistance. (Ground 3)

(4)   The Board was in breach of procedural fairness by (a) unlawfully fettering its discretion in refusing his appeal on the ground that it did not satisfy requirements; (b) the Adjudicator acted in a procedurally unfair manner when dealing with his appeal; (c) the Board’s decision in refusing his appeal was unreasonable or irrational in the public law sense or was a result of procedural error or unfairness; and (d) the Board failed to meet the greater care and duty owed to a self-represented claimant. (Ground 4)

(5)   He answered all the questions with honesty but the Board found against him on credibility so as to dispose of his case and it was unacceptable and detrimental to the spirit of the judicial system. (Ground 5)

At the hearing, the applicant said he had been in Hong Kong for the last 17 years and had married a local Chinese woman.  He said everyone has human rights and he did not understand why the authorities had treated him this way. 

Legal principles

10.  In assessing the merits 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 on appeal, which operates as a re-hearing, 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.  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

11.  In the first place, the applicant did not advance any grounds for judicial review in his Form 86. Further, the applicant did not in his Notice of Appeal or written submissions provide any ground of appeal against the Judge’s decision, or identify any errors, or any other specific potential grounds for reversing the Judge’s decision.  His appeal must fail.

12.  The Board had not rejected the applicant’s case on the issue of credibility as alleged in Ground 5.  As mentioned in [5] of this judgment, the Board rejected his case on the ground that the claim only involved a private land dispute without any state involvement or acquiescence, and that he did not sustain any injury that attained the minimum severity to qualify for non-refoulement protection under any of the applicable grounds.  The judge was entitled to find that there were no errors of law or procedural unfairness or irregularity in the Board’s decision. Grounds 1 to 4 are devoid of merit and should be rejected. 

13.  Having considered the material before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

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