Dhessi Ivinder Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 578/2018

[2019] HKCA 364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 578 OF 2018

(ON APPEAL FROM HCAL 959 OF 2017)

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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

1.1.This is an appeal by Mr Dhessi Ivinder Singh (“the appellant”) from an order of The Honourable Mrs Justice Campbell-Moffat (“the judge”) given on 11 December 2018 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)¹.

1.2.The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 19 October 2017 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decisions of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.The appellant is a national of India born in 1984.  He worked as a farmer between 2003 and 2015 in India.  He entered Hong Kong on 1 October 2015 as a visitor and overstayed after 16 October 2015.  On 20 October 2015, he surrendered to the Immigration Department.  On 12 February 2016, he lodged his claim for non-refoulement and on 3 June 2016, he submitted his Non-refoulement Claim Form. 

The appellant’s allegations

3.The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what he alleged was that if he were to be returned to India, he would be harmed or killed by his paternal uncle Daljit Singh (“Daljit”) due to a land dispute.  His allegations can be summarized below: 

-   The appellant’s grandfather owned some land. The grandfather gave 4.5 kilas to his father and 3.5 kilas to Daljit.  Daljit was dissatisfied with the division.

-   The dispute was decided by the court in 2013 which ruled in favour of the appellant’s father.  Daljit started to collude with two cousins of the appellant’s father to take part of the land and to split the land among themselves. 

-   Daljit was a supporter of the Shiromani Akali Dal party (SAD) but he did not have any official position; however, he had close connections with the police and the village head.

-   From the end of 2014 to August 2015, the appellant received verbal threats twice, and was beaten on the second occasion with bamboo sticks which resulted in bruising.

-   The appellant alleged that even though he had reported the land dispute and the first two attacks to the village head, he was not assisted by the head on the ground that Daljit was not present on those occasions. 

-   Finally, in 2015 Daljit was driving a tractor and nearly collided with a bicycle that he was riding.  He did not report this, or any of the previous incidents, to the police. 

-   The appellant moved to his grandparents’ home in Jagraon city on the same day and stayed there for 20 days; he claimed that Daljit once stared at him with hatred.

-   The appellant then fled to his sister’s home in Ludhiana city and stayed for about 10 days.  He was informed that Daljit was searching for his whereabouts.

-   With the help of his father and one of his father’s friends, the appellant went to New Delhi.  He applied for and obtained a passport without any problems.

-    After the appellant arrived in Hong Kong, he kept in contact with his family by phone once a month. He was told that Daljit was still asking for his whereabouts.

4.The appellant’s claim was examined to see if he was at risk under any of the following risks: “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.“Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.“Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decisions

6.The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director concluded that the appellant had failed to make out his claim as a matter of fact.  The Director rejected the appellant’s claim for reasons set out in a decision given on 5 July 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 29 March 2017 in respect of “BOR 2 risk” (“the Director’s Decisions”).

The TCAB’s Decision

7.1.The appellant then appealed to the TCAB which held a hearing on 20 April 2017 at which the appellant was present.  The appellant confirmed that he did not have anything to add and he would rely on the materials he had provided.  The appellant answered a number of questions about his evidence. 

7.2.The TCAB thereupon examined his claim on the materials provided in the papers.  The TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, the TCAB found that the appellant’s evidence and reasons for making the claim for non-refoulement were unconvincing and lacked credibility.  The TCAB found that it was implausible for Daljit to target the appellant when the land was not owned by the appellant, but by his father.  His assertion that Daljit targeted him was not based on any objective materials.  Even taking the appellant’s claims at their highest, he had not suffered anything more serious than verbal threats, and had not suffered any serious physical harm.  He had been able to leave India freely using his own passport.  He did not apply for protection for four months after arriving in Hong Kong.  And there was no evidence that Daljit had the influence or resources to be able to target the appellant at locations in India other than his home town.  The appellant had failed to show that any treatment he would face would attain a minimum level of severity, or that there is a genuine and substantial risk of the alleged ill-treatment, or that there is any state acquiescence. 

Application for leave to start judicial review

8.The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision, but only the Director was named as a proposed respondent.  However since the appellant stated the date of TCAB’s Decision in his notice of application for leave to apply for judicial review, the judge correctly took the application as being one against that Decision.  The appellant did not set out any grounds in his notice of application and in his affirmation in support, simply stated that the TCAB’s Decision was not fair.  He did not request for an oral hearing.  Accordingly the judge dealt with the matter on paper. 

The Judge’s Decision

9.The judge refused leave for reasons set out in her Decision, in particular:

“Grounds of review

10. This is an application for leave to review the decision of the TCAB. There were no proper grounds of review. The Applicant states that the decision was “unfair”. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers, grounds and submissions carefully. The application is in respect of the decision of the adjudicator only. At that time, he chose, after advice from the Board, to say nothing further and relied solely upon the hearing bundle. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator, against whom he seeks judicial review, engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable. In particular, the Applicant chose to make no further representation to the Adjudicator despite being told that he could do so. He answered questions put to him and did not avail himself of a closing submission. He made no complaint before either tribunal that he considered the manner in which he had been treated to be unfair.

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Appeal to Court of Appeal

10.By a Notice of Appeal filed on 14 December 2018, the appellant appealed the judge’s order to this court.  The grounds of appeal may be summarized as follows:

(i)   The judge failed to consider properly the appellant’s fear, failed to conduct sufficient enquiry, and did not provide a reason.

(ii)   The judge failed to consider the appellant’s physical and mental torture as well as the threat and attack on him.

(iii)   The judge failed to consider the psychological impact of the facts in relation to the threat exerted by the appellant’s uncle and “his people” after the court ruling in favour of the appellant’s father.

(iv)   The obligation of a signatory state to adopt reforms on means of redress aimed at ensuring the safety of its citizens which are effective in any event.

(v)   No sufficient basis to conclude that the appellant would not be at risk of “being subjected to torture and treated to be unfair”.

Legal Principles

11.It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his 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 appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin (“Country of Origin Information”, or “COI”).  

11.2.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 TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  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 TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration²and we will not repeat them here.  

11.3.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 appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong³.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall⁴are 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.

Skeleton Submissions

12.1.After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed his skeleton submissions on 20 February 2019.  Essentially he repeated his grounds of appeal adding only that the judge had not dealt with them “properly”.  As explained above, a general complaint of that nature is not sufficient for this court to interfere with the judge’s exercise of discretion to refuse judicial review.   

12.2.I would only add one point that arose from his skeleton submissions.  The appellant referred to the last sentence in paragraph 4 of the judge’s Decision which started with the words “[A]ssuming that he was being targeted”.  The appellant complained that the judge had not considered the attack by Daljit properly.  This was a misinterpretation by the appellant of those words.  The entire sentence was as follows: “[A]ssuming that he was being targeted, the Applicant fled from his home village to live with a relative for a short while but believed that his uncle was still looking for him and therefore came to Hong Kong”.  In other words, the Judge was merely recording the appellant’s own explanation for leaving his home village.

Discussion

13.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. 

14.The grounds of appeal raised by the appellant are general assertions of a blanket nature which cannot be accepted as realistic grounds of appeal.

15.We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

16.Finally, at the oral hearing before us, the appellant alleged that his father has been injured by the same persons who had attacked him, and his brother (who had returned from Dubai) was also injured (a few days after the injury to their father) when he returned to India.  The appellant claims these events occurred in June 2018 when he (the appellant) was in prison.

17.These allegations came out of the blue.  The events are said to have occurred half a year before the judge’s Decision but the appellant did not make any such assertions or produce such evidence before the judge, nor did he refer to them in the Notice of Appeal, nor did he refer to them in the skeleton submissions filed in this court.  He did not provide any satisfactory explanation for his failure to do so, nor did he produce any documents in support of these alleged events which he said occurred some 9 months ago.  These new allegations were merely made by the appellant at the Bar table. The conditions of Ladd v Marshall are not satisfied in any event, and this court would therefore not take these new allegations into account.      

Order

18.For the reasons set out above, this appeal must be dismissed.    

The appellant acting in person