Gurwinder Singh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

CACV 33/2019

[2019] HKCA 499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 33 OF 2019

(ON APPEAL FROM HCAL NO 896 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) dated 15 January 2019, refusing to grant leave to the applicant to apply for judicial review.

2.The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 109.  We shall not repeat the same here.

3.Briefly stated, the applicant is a national of India.  He first came to Hong Kong on 31 January 2015 as a visitor and was allowed to stay until 5 February 2015.  He did not depart and overstayed since 6 February 2015.  He was arrested by the police on 27 March 2015.  He was referred to the Immigration Department for investigation and on 29 March 2015, he lodged his non-refoulement claim.  The applicant’s claim was based on his fear that he would be harmed or even killed by his cousins Jagpreet and Satnam because he had a land dispute with them.

4.By a Notice of Decision dated 26 October 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

5.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After the hearing on 30 April 2018, the Board dismissed the appeal on 18 May 2018.  The Board found that the applicant’s evidence was implausible and incredible.  Even on his own account of events, the alleged physical assaults by his cousins did not attain the minimum level of severity that warranted non-refoulement protection.  The Board found no evidence of state involvement or acquiescence and internal relocation would be a viable option.  The Board rejected the applicant’s claim under all applicable grounds.

THE JUDGE’S DECISION

6.The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 21 May 2018 contained the following grounds for the applicant’s intended challenge :

(1)   the Director had failed to give proper weight to the presence of state acquiescence and rejected the applicant’s case unfairly;

(2)   the torture suffered by the applicant was the direct result of misconduct and collusion of the Indian police and state law enforcement agencies;

(3)   the Indian police and law enforcement agencies had failed to provide reasonable protection to the applicant;

(4)   the Director had failed to take the applicant’s argument into account and failed to give weight to his argument in reaching the decision;

(5)   the Director had failed to consider or give sufficient weight to the relevant country of origin information (“COI”);

(6)   the Director adopted an unfair attitude in ruling his case;

(7)   the Director did not appreciate the fact that corruption and incompetency of administration is still a serious problem in India;

(8)   the Director had failed to attain the high standard of fairness in making his decision;

(9)   the Board had failed to make sufficient enquiry; and

(10)   the Board had failed to give sufficient time to the applicant to arrange relevant evidence.

7.On 15 January 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [10] – [16] for his refusal to grant leave :

“ Discussion

The Director’s Decision

10. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power to make investigations in the matter. See section 18 of Schedule 1A of the Immigration Ordinance, Cap. 115. The Board had heard the applicant’s appeal and made its Decision.

11. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

12. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

13. Grounds (a) to (e) are his opinion, unsubstantiated by any evidence.

14. As to ground (f), the Adjudicator was right to ask for proof as the applicant bears the burden of proof himself. He should have asked the Adjudicator for time to adduce the evidence.

15. The applicant was unable to say what relevant evidence he would be adducing to the Board. He had had his chance of adducing his evidence before the Director. He has the obligation to provide all relevant evidence to the Director. He also had the chance to adduce the evidence to the Board. He cannot complain that he was not given the chance to do so.

Conclusion

16. Having considered the applicant’s grounds for his application, I find that he has failed to show that his application for judicial review has any prospect of success. I refuse to grant leave to the applicant for judicial review of the Board’s decision. Accordingly, I dismiss his application.”

The Appeal

8.In the Notice of Appeal filed on 21 January 2019, the applicant provided the following ground of appeal :

“ I am not satisfied with the decision because my life is not save (sic) in my own country. Please help me to stay in Hong Kong until I have problem.”

9.In the written submissions, the applicant repeated his case that he would face risk of harm if refouled as his enemies would locate him easily and the Indian police is corrupt and would not protect him.

10.We heard the appeal on 30 April 2019.  The applicant made no oral submission.

DISCUSSION

11.Neither the ground stated in the Notice of Appeal, nor the matters mentioned in the written submissions amount to valid grounds of appeal.  The applicant has identified no error in the reasons given by the Judge for his decision.  Nor has he pointed out any ground on which this court should interfere with the Judge’s decision.

12.We endorse the Judge’s finding that the applicant’s case was unmeritorious and he had failed to raise any valid ground to challenge the Board’s decision.  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 for judicial review.

13.For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

The applicant, unrepresented, acting in person.