RE NIRMAL SINGH

CACV 514/2020

[2021] HKCA 1072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 514 OF 2020

(ON APPEAL FROM HCAL NO. 2105 of 2018)

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J U D G M E N T

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Hon Mimmie Chan J giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  given on 15 September 2020 striking out and dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”)  dated 2 October 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”)  dated 14 December 2016 rejecting his non-refoulement claim.

2.  The applicant is a national of India.  He arrived in Hong Kong on 1 June 2014 as a visitor and was permitted to stay until 3 June 2014.  He was arrested by the police in Hong Kong on 18 June 2014 after having overstayed for about 2 weeks. He first lodged his non-refoulement claim with the Director by written representation on 28 July 2014 and was released on recognizance on 5 September 2014.  Subsequently, the applicant lodged his non-refoulement claim form with the Director on 12 April 2016.

3.  The applicant’s claim is based on his fear of being harmed or killed by the applicant’s paternal uncle, Gurnam Singh (“Uncle”), who is a member of Shiromani Akali Dal (“SAD”)  with connections to the local politicians, the Minister of Food Department in Punjab and high position personnel in the police and army.  The Uncle has been pressuring the applicant to give up his lands.  On one occasion, the applicant injured his Uncle’s son during a conflict.  After that, the applicant fled India with the intention of avoiding further conflict with the Uncle and the police.  His case was set out in detail in [11] of the Director’s decision and summarised by the Judge in [1] to [4] of the Form CALL-1 dated 15 September 2020, [2020] HKCFI 2283.

4.  The applicant’s case, in brief, is that he was a farmer in his home village in Dadehar Sahib, Tehsil District, Tarn Taran, Punjab, India.  He worked on his father’s land.  After the applicant’s father transferred his lands to the applicant in about 2013, the Uncle had been pressuring the applicant into giving up his land and transferring it to the Uncle.  Apart from threats, the applicant and his father had been physically harmed on multiple occasions by the Uncle and his sons.  They had made reports to the police but were ignored.  On one occasion, during a fight, the applicant injured the Uncle’s son in the head with a dagger (the “Assault”).  The applicant’s father was arrested.  The Uncle then made it clear that the only way to resolve the differences between them was to transfer the applicant’s land to the Uncle.  The applicant moved out of his village and lived with his friend, away from the village.  He stayed there safely for about 2 months before travelling to Hong Kong.

5.  By his decision dated 14 December 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], persecution risk[2], BOR 2 risk[3] and BOR 3 risk[4] grounds.  On 20 December 2016, the applicant filed with the Board an appeal against the Director’s decision. 

6.  The applicant’s appeal to the Board was heard on 17 September 2018.  By its decision dated 2 October 2018, the Board dismissed the appeal, rejected all the applicable grounds, and affirmed the Director’s decision. 

7.  After having considered the applicant’s evidence and heard the applicant, the Board found that the applicant was unwilling to answer questions and unwilling to provide details as to his situation in India.  The Board did not accept any part of the applicant’s account of events in India.

8.  On 3 October 2018, the applicant filed a Form 86 in HCAL 2105/2018 to apply for leave to judicially review both the Director’s decision and the Board’s decision.  As summarised by the Judge in [9] of the Form CALL-1, the applicant’s grounds in support of his application are as follows:

(1)  that the Director and the Board reached their decisions wrongly in assessing the applicant’s non-refoulement claim as their decisions were not reasonable or fair;

(2)  that the adjudicator failed to give the applicant sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the applicant’s case that led to an unfair outcome of rejecting his con-refoulement claim;

(4)  that the Director failed to take into account the fact that the applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state should be rendered liable to the applicant by cause of the state and its public officials’ failure to provide reasonable protection for its citizens under the duty of due diligence;

(5)  that the Director failed to consider or give sufficient weight to the evidence in the listed COI which supported the applicant’s aversions that the police in India would not be able to protect him;

(6)  that the Director failed to consider that corruption and incompetency of the administration in India is still a very serious problem, which was supported by the reports of various human rights organizations and was testament to the Applicant’s assertions; and

(7)  that the Director failed to attain high standard of fairness required by the Wednesbury test in his decision which should be considered as unreasonable in the scope of public law.

The Judge’s Decision

9.  After hearing the applicant on 15 September 2020, the Judge refused leave for the reasons set out in [10] – [15] of the Form CALL-1:

“10. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or what relevancy was state acquiescence to his claim, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to give him sufficient time and opportunity to provide evidence for his claim or appeal, or how did the Director fail to apply high standards of fairness in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge.

11. 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.

12. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 40 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

13. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. 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.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

10.  By a Notice of Appeal filed on 25 September 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds:

“1. The Director’s Decision, it was evidence that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

2. The Applicant submits that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

3. The Adjudicator failed to make sufficient enquiring before finalising the determination. The Adjudicator stated that the Applicant has failed to advice any credible evidence to prove material elements of his claim.

4. It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that to when I was in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to me to arrange relevant evidence to his non-refoulement claim as well as his appeal.

5. Surprisingly, the director in his Decision while referring to relevant COIs kept including meaning which suited his pre-conceived conclusion. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.”

Skeleton Submissions

11.  On 10 May 2021, the applicant filed his written submissions.  He advanced the following grounds of appeal as summarised below:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility; and

(3)  section 37ZT(2)  of the Immigration Ordinance, which we note is irrelevant as there was no issue of late filing of appeal to the Board in this case.  We therefore we do not see any reason to deal with this ground.

12.  We heard the appeal on 20 July 2021.  At the hearing, the applicant had nothing further to say. 

Legal Principles

13.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

14.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim)  the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise)  of harm, the availability (or otherwise)  of state protection, and the viability (or otherwise)  of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

15.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[5] and we will not repeat them here. 

16.  Subsequently, if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[6]. Generally, fresh evidence would not be admitted unless the requirements in Ladd v Marshall[7] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

Discussion

17.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

18.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

19.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  The application for leave for judicial review of the Board’s decision was hopeless and rightly dismissed. There is no basis to disturb the Judge’s decision. 

20.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.