RE HARBHAJAN SINGH

CACV 207/2022

[2022] HKCA 1344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 207 OF 2022

(ON APPEAL FROM HCAL NO. 546 of 2019)

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JUDGMENT

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Hon Andrew Chan J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 12 May 2022^[1] refusing 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 (“Board”) dated 5 December 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 January 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is an Indian national, of Punjabi ethnicity and is a follower of the Sikh faith. He arrived in Hong Kong on 12 July 2001, and was permitted to remain as a visitor until 14 July 2001. He did not depart, and has overstayed. The applicant was arrested by police on 12 May 2007 for overstaying, and was referred to the Immigration Department.

3.  On 16 May 2007, the applicant lodged a torture claim. The torture claim was rejected by the Director on 30 June 2011, and the applicant’s petition against that decision was rejected on 4 August 2011. Under the current Unified Screening Mechanism, the applicant raised his current non-refoulement claim, on applicable grounds other than torture risk[2], on 13 May 2013.

4.  The applicant married his wife in Hong Kong on 18 July 2014. His wife is an Indonesian national, a Muslim, and being employed as a domestic helper in Hong Kong. Their daughter was born in Hong Kong on 1 November 2014.

5.  The applicant’s troubles began in 1999 when his then girlfriend’s family became aware of their relationship. Her family opposed their relationship, because her family was wealthy and from an upper caste, whereas the applicant was from a middle caste and poor. Her family repeatedly made threats to the applicant and his family, and on one occasion in 2000 arranged for assailants who violently assaulted the applicant. As a result of her family’s efforts to intimidate the applicant and stop him from contacting her after the assault, he ceased contact with his girlfriend. More than a decade later, long after the applicant left India for Hong Kong, his mother informed him in 2012 that his ex-girlfriend had entered into an arranged marriage with another man and that it might be safe for him to return to India.

6.  Subsequently, the applicant informed a childhood friend who was living in Hong Kong of his intention to return to India. That friend in turn told the applicant’s fellow villagers in his hometown of his intention to return to India. When the applicant experienced difficulties in applying for a passport from the Indian Consulate, he suspected that this was due to his ex-girlfriend’s brother’s intervention.

7.  In 2015, the applicant, his wife and infant daughter visited that same childhood friend who also told everyone in the applicant’s home village that he had married a Muslim. As a result, one of the applicant’s brothers who was a military officer, threatened to kill him for dishonouring the family by marrying a Muslim. In the same year, the applicant’s mother was killed by his ex-girlfriend’s brother when he rammed his car into the rear of the motorcycle that she was riding on. The applicant was informed that the collision was deliberate.

8.  As such, the applicant’s claim was based on the fears that, if he returned to India, he would be harmed or even killed by his ex-girlfriend’s family (due to enmity for his prior romance with her), or by his own brother and/or by the Sikh population at large (for marrying a Muslim). The factual background was set out at paragraphs 7.1 to 7.57 of the Director’s decision.

9.  By notice of decision dated 30 January 2018, the Director assessed the applicant’s claim on all applicable grounds except torture risk and determined it against him. Those applicable grounds are BOR 3 risk[3], persecution risk[4], and BOR 2 risk[5].

10.  The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 19 October 2018, during which the applicant gave oral testimony. The Board found that, based on the applicant’s evidence of the assault in 2000, the violence or ill-treatment he had been subjected to did not meet the minimum level of severity. There were no subsequent instances of violence against him. There was also no evidence before the Board that Sikhs, as a religious group, would pursue the applicant personally for marrying a person outside his religion. Thus the Board found that there was no real risk of harm in the event of refoulement.

11.  The Board also found that effective state protection would be available and that internal relocation was generally viable.

12.  Therefore, on 5 December 2018 the Board dismissed the applicant’s appeal on all the applicable grounds except torture risk.

Decision of the court below

13.  On 26 February 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his supporting affirmation, his stated grounds for judicial review were that the Board’s decision was unfair and unreasonable and that his life was in danger in India.

14.  Following consideration of the documents only, on 12 May 2022 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [30] – [31] of the Form CALL-1 as follows:

“30. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

31. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the three 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. The Board assessed the Applicant’s claim on the basis of the case as he asserted. It was on that basis that the Board found that he had failed to prove his entitlement to non-refoulement protection under any of the three remaining applicable grounds under the USM. Save for the minor blemish mentioned in paragraphs 24 to 26 above which is not fatal to the Decision, the Court could not detect any error of law in the Decision. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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 Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.”

Appeal to this Court

15.  On 19 May 2022, the applicant filed his Notice of Appeal against the Judge’s decision. His stated grounds of appeal are that he would face hardship if he were to return to his home country, that the Board relied on news sources that were not officially recognized or were simply hearsay and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

16.  However, the applicant did not provide any particulars in support of his grounds of appeal.

17.  The Registrar of Civil Appeals directed on 28 June 2022 that the applicant should lodge his skeleton argument on appeal not less than 28 days before the hearing of the appeal, failing which the hearing date would be vacated and the appeal would be disposed of on the papers.

18.  The applicant has failed to lodge any skeleton argument as directed. The hearing date is vacated and this appeal is disposed of on the papers without a hearing.

Legal principles

19.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [6]; Re Md Shohel Sheak [7]; and Re Limbu Birkhaman [8]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. 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. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

20.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

21.  In the present case, the Board rejected the applicant’s claim due to its findings that the violence or ill-treatment he had been subjected to did not meet the minimum level of severity, and that there were no subsequent instances of violence against him. There was also no evidence before the Board that Sikhs, as a religious group, would pursue the applicant personally for marrying a person outside his religion. Thus the Board found that there was no real risk of harm in the event of refoulement. Such findings are within the province of the Board. The Court will not interfere with such assessments unless they are reversible on public law grounds. There seem to be no valid public law grounds for reversing or interfering with the Board’s decision to reject the claim.

22.  Having considered the materials before us, we are of the view that the Judge was right to refuse leave. There is no reasonably arguable ground to challenge his decision.

23.  For these reasons, this appeal is dismissed.