PARAMJIT SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 179/2024, [2024] HKCA 691

On Appeal from [2024] HKCFI 1139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2024

(ON APPEAL FROM HCAL NO 1266 OF 2020)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 7 May 2024, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”) dated 24 April 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 13 May 2020. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 December 2018.

BACKGROUND

2.  The Applicant is a national of India. He entered Hong Kong illegally on 30 January 2016, and surrendered himself to the authorities on 1 February 2016. On 31 May 2016, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by Apar Singh (“Singh”), a Municipal Councillor of Jagraon, upon his return to India because of Singh’s enmity towards him. Details of the Applicant’s claim have been summarised by the Judge at §§1-10 of the CALL-1 Form.

3.  By a Notice of Decision dated 19 December 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s decision to the Board. On 13 May 2020, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

5.  The Judge summarised the Board’s Decision at §§11-15 of the CALL-1 Form as follows:

“11 The Board accepted the account of events as asserted by the Applicant, except his assertion about his father’s murder and the assault on the Applicant, which is the centrepiece of his claim for non-refoulement protection. The Board considered the alleged murder and assault are inconsistent with the rest of his evidence. Despite the harassment following the building of the fitness club, Singh had left the Applicant alone for three years without trouble until the Applicant started to investigate his father’s murder.

12. The Applicant claimed that the murder of his father was public knowledge in the area where he lived and Singh targeted him because he was trying to uncover Singh’s involvement in the murder. But on the Applicant’s own evidence, though his family had made vague allegations of harassment on the father which led to his father developing a drinking habit, for the five years after his father’s death, the Applicant’s family had never mentioned to him about the murder, not even the possibility of murder. Likewise, for the three years after the Applicant’s return from Dubai, his neighbour never told him about the murder. The absence of proper and credible explanation to such anomaly casts doubts on the credibility of the Applicant’s evidence about what he was told by his neighbour. That led the Board doubt the whole theory about his father’s murdered. The Board also found that theory is unsupported by any credible evidence. If there was no murder, there would not have been such an attack on the Applicant as he described .

13. Even if his father were murdered, by the time the Applicant started his investigation, five years had lapsed since his father’s death. On any objective view, the Board was not persuaded that the investigation could lead to anything prejudicial against Singh. Given Singh’s profile in the neighbourhood, Singh would not consider the Applicant a person to be reckoned with if he did not make a nuisance of himself to him. The Board found it inherently improbable that Singh would have found it necessary to harass the Applicant.

14. For the above reasons, the Board rejected the Applicant’s evidence that he had been told by a neighbour about his father’s murder and that he was assaulted because he started to investigate his father’s murder. Having rejected that part of his evidence, the Board held that ‘the Applicant ran away from a fear created by himself and from a person whom he made a fear’. It found that the Applicant did not genuinely and had no reasonable ground to believe he would face substantial risk to his life, if returned to India.

15. Having rejected the centrepiece of the Applicant’s case and made the above finding, the Board found on the basis of the remaining evidence of the Applicant’s case that he had failed to establish the factual basis to support his claim for protection under any of the four applicable grounds under the USM. Hence, it dismissed his appeal against the Director’s Decision.”

THE JUDGE’S DECISION

6.  On 24 June 2020, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.  On 25 September 2023, the Applicant applied to withdraw his leave application. However, on 14 February 2024, the Applicant applied to “re-open” his leave application on the ground that he had been misled into making the withdrawal application as a result of a fraud practised on him. His leave application was restored.

8.  On 24 April 2024, the Judge refused to grant leave to the Applicant to apply for judicial review, for the following reasons:

“17. The Applicant did not advance any grounds for judicial review in the Form 86 or his supporting affirmation. He was invited by the Court via its letter dated 26 February 2024 to advise the Court of his first language and to file submissions. He responded by reiterating that his life would be in danger if returned to India.

18. At the hearing, after the legal principles in the preceding section was explained to him, he confirmed that he had no complaint about errors of law, procedural unfairness and irrationality in the Decision. In the course of exploring his grounds of application for judicial review with him, he asserted that he wished to return to India but it would be unsafe for him to return. That is a blatant challenge of the Board’s finding of fact that it would be safe for him to return, which is impermissible save for errors of law, procedural unfairness or irrationality in the Decision.

19. He complained that his claim had not been properly considered by the Director or the Board. He submitted that while the Director quoted examples that wrongdoers will be punished (which the Court understands him to mean country of origin information (‘COI’) supporting the availability of state protection), he said he would not be heard or be allowed to present his case against Singh in India because Singh was powerful. He asked this Court to reconsider his claim and allow him more time to stay in Hong Kong for his danger to be resolved. He repeated his story about ‘someone coming to his home in India recently’ suggesting that his life will be at risk arising from some new events. Nevertheless, the new event is premised on a story which had been dismissed by the Board as not proven and a fear of his own creation. In essence and in substance, he is seeking to challenge the finding of fact by the Board that his fears and risk of harm are not genuine. This is impermissible save for errors of law, procedural unfairness or irrationality in the Decision.

20. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to India. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

21. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

22. The Board rejected the centrepiece of the Applicant case, ie his father’s murder and his assault by Singh, as incredible. He had therefore failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.”

THIS APPEAL

9.  In his Notice of Appeal dated 7 May 2024, the Applicant put forward the following ground(s) of appeal: “The High Court did not consider my [judicial review]. Adjudicator did not give me correct decision. His decision is full of wrong. Please grant my leave.” [sic]

10.  On the same date, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

11.  In his written submissions dated 20 May 2024, the Applicant repeated his fear of being sent back to India, though he said that if he had the chance, he “must be return”. He added that he had “no big objection to the High Court”, but requested the Court of Appeal to grant him leave to apply for judicial review.

DISCUSSION

12.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

13.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

14.  The Applicant has failed to identify or show any error in the Judge’s decision of 24 April 2024, and has failed to raise any viable ground of appeal against the Order.

15.  The Applicant’s appeal has no merits, and is dismissed.