Re Parminder Singh

CACV 543/2020

[2021] HKCA 649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 543 OF 2020

(ON APPEAL FROM HCAL 1018 OF 2018)

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Before:  Hon Yeung VP and Lisa Wong J in Court

Date of Hearing:  3 May 2021

Date of Judgment:  10 May 2021

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal by the abovenamed applicant, Mr Parminder SINGH, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 23 September 2020 (“Judge’s Decision”) refusing him leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 1 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 8 September (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of India now aged about 33, is a fear of being harmed or even killed by his uncles, Manjit Singh (“Manjit”) who was a farmer and Jinda Singh (“Jinda”) who was a policeman and the junior in-charge of the Jalandhar police station, over a land dispute if he should return to India.

3.The circumstances giving rise to such fear have been set out in detail in paragraph 6 of the Director’s Decision and in gist in paragraphs 33 to 46 of the Board’s Decision and [2] to [4] of the Form CALL-1 dated 23 September 2020, [2020] HKCFI 2403 (“Form CALL-1”).  Briefly:

(1)  The land in question (“Land”) is registered under the applicant’s father’s name but was coveted by Manjit and who was well connected with the police because of Jinda’s position.

(2)  After leaving school, the applicant farmed on the Land.

(3)  One day in around the summer of 2010, the applicant found Manjit, together with some other men, farming on the Land.  When confronted by the applicant, Manjit claimed to be entitled to farm on the Land which actually belonged to the family.  A heated argument followed.  The applicant was assaulted. Before they left, Manjit and Jinda threatened to kill the applicant the next time if he dared to interfere with them.  The police refused to register the applicant’s complaint because of Jinda.

(4)  The conflict continued with no sign of settlement even with the assistance of the police and the village’s elders.

(5)  However, nothing eventful happened from 2010 to 2012 until one day in 2012 when the applicant again found Manjit farming on the Land with a group of 6 to 7 people.  The applicant was attacked when he approached Manjit.  The applicant ran away as he was outnumbered.  Manjit shouted that he would kill the applicant if he saw him on the Land again.  The applicant did not report the matter to the police given what had happened on the last occasion.  He stopped farming on the Land after this incident but he refused to give up the Land.

(6)  In around mid 2012, the applicant’s mother heard that Manjit planned to murder the applicant who then left India in July 2012 for Hong Kong.  He was however denied entry.  When he returned to India, he resumed cultivating the Land whenever he could.  As a result, Manjit and his men started harassing him regularly and occasionally assaulted him.  As the dispute with Manjit escalated, the applicant took shelter with relatives and was left alone by Manjit and Jinda.

(7)  In June around 2014, the applicant returned home to visit his parents. Manjit went to the applicant’s house with 6 men, all armed with wooden sticks. Having been forewarned by his neighbours, the applicant escaped in time. 

(8)  Fearing for his life, he left India again for Guangzhou, China on 11 July 2014. 

(9)  The applicant had been told by his family that Manjit has taken over the Land.  He has also gone to the applicant’s house occasionally to demand for his whereabouts.  Though he did nothing to the applicant’s family, he threatened to kill the applicant if he should go against him.

Illegal entry into Hong Kong and lodgment of NRF Claim

4.The applicant entered Hong Kong illegally from Shenzhen on 30 July 2014.  He was arrested by the police on 7 September 2014.  

5.He lodged the NRF by written representation on 9 September 2014.  The applicant further submitted a Non-Refoulement Claim Form dated 4 August 2017.  In processing the NRF Claim, the Director’s representatives interviewed the applicant on 28 August 2017.  The applicant then had legal assistance and representation from the Duty Lawyer Service.

Director’s Decision

6.The Director Decision covered all possible grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3]and “BOR 3” risk[4]. The Director found the NRF Claim unsubstantiated under all these grounds.

(1)  First, the low intensity of past ill-treatment from Manjit and Jinda is indicative of a low future risk of real or substantive harm from them upon the applicant’s return to India.  Indeed, apart from being Manjit’s brother, there is no evidence of Jinda’s involvement in the applicant’s dispute with Manjit over the Land.

(2)  Second, the availability of state protection would further lower or even negate the level of risk (if any).  There is objective country of origin information (COI) showing that the Indian government has taken practical steps to monitor the conduct and improve the effectiveness of the Indian police.

(3)  Third, reasonable internal relocation alternatives are available in a country as large and populous as India.  It would not be unduly harsh or unreasonable for an able-bodied adult like the applicant to relocate to another district of India.

Appeal to Board and Board’s Decision

7.The applicant appealed to the Board.  The Board conducted a rehearing of the NRF Claim on 17 April 2018 at which the applicant, with the assistance of a suitable interpreter, testified before and answered questions by the Board.

8.The Board’s Decision covered all 4 applicable grounds for non-refoulement protection.

9.After considering the applicant’s evidence and hearing him at the hearing, the Board accepted the basic facts spoken to by the applicant and found that he was the victim of a land dispute with Manjit over a series of incidents, in some of which he was injured.  However, the Board did not see any real chance that the applicant will be killed or otherwise harmed by Manjit or Jinda if he is refouled to India.  The Board further reached the same conclusions as the Director on the availability of reasonable state protection and viable internal relocation options.

Application for leave for judicial review and Judge’s Decision

10.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1018/2018 on 5 June 2018, supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on the ground that he cannot go back to India where his life would not be safe.

11.In the absence of a request for an oral hearing, the Judge considered the application on the paper on the materials available to him and refused leave.  His reasons can be found in [9] to [11] of the Form CALL-1:

“9. On 5 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he cannot go back to his country as his life would be in danger there until his problem is solved without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such 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 for his intended challenge.

10. 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.

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

12. 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.”

Appeal to Court of Appeal - grounds of appeal and submission

12.By a notice of appeal filed herein on 6 October 2020, the applicant appealed against the Judge’s Decision and advanced the following as “ground of appeal”:

“I am not satisfied with the decision because its away form facts and reality which are related with my case. There is no any ransparency in these decision. Please accept my application and allow mw to process further my case”

13.On 24 March 2021, the applicant lodged written submission, by which he asserted (sic):

“My name is PARMINDER SINGH my case no. is CACV/543/2020.I am living as an asylum seeker here in Hong Kong because my life was not save in my own country.

My life will be come so worse if I return to my own country at this moment. I am not satisfied with the all decision until now given on my case.

So many things which are related with my case are ignored by them which shows the all decision wasn’t transparent.

The situation of my country is much different as they think because it’s so hard to live and stand there in front of my enemies.

Please help to stay here in Hong Kong until I have problem in my own country.

Torture and deaths are so comman in police custody of innocent people because they don't have any fear from anyone.They just give support to them who give them bribe.

You can see so many examples related with my case in YouTube and in internet that how people like me treated in my own country.

So in that fearful environment it’s not possible for me to go back because its mean iam inviting my death if I return. Even if someone like me willing to file an F.i.R. in police station they direct tell to those powerful people that this named person come here to complain against you.

Iam not satisfied with the decision given by torture claim appeal board because they ignored so many things which are related with my case.There is lots of difference as they thinking and the actual situation in my home country.

What can I do which can showing that iam really in danger in my country. My life become worse o worsen due to my enemies if I return back.

Please try to understand the situation with which I suffered a lot and now I don't want to feel the same thing .I will go back to my country but please give me sometime sothat I can solve my problem.

If you stand with me in this situation it’s really so helpful for me and I can save my life.Iam so greatfull to you for your kind attention over my request.

police and other law making authorities mostly plying in their hands because they are using their political influence and I don’t have that much strength to fight with them.

Even if someone want to become a witness against them than many time that person may disappear or killed by unknown persons which are hired by them to crush all who like to stand in front of them.

It’s very difficult to get justice in that corrupt environment because everything depend on who you are powerful by money or in political field.

People like me are living under threat due to enemies who are so strong in all the ways.We don't know that when they come and vanish all.

My well wishers back in my country are doing their best to solve my problem and may in future we can reach in some fruitful cob clusion. But at this moment it’s not possible for me to go back.

I hope you will give me your kind favour and allow me to stay here in Hong Kong until I have problem in my own country .I hope I will get your kind favour.Because it will help me to stay safe and without any fear.I will be greatfull to you for your kindness towards me.I hope you will understand my problem and allow me to sty here.

Because it will help me to stay save here which will bring peace of mind and safety in my life and this is possible only with your help.”

14.The applicant appeared in person at the hearing of the appeal on 3 May 2021.  He was provided with a Punjabi interpreter.  He had nothing to add to his notice of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

15.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 role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise 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 [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

16.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[5]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)] and [14(4)].

Discussion

17.As summarised in [6] and [9] above, the NRF Claim failed on the facts at both stages of the unified screening mechanism.  The questions whether the applicant would be at risk of life or torture if he is refouled to India and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  The applicant has not advanced any ground of appeal, properly so called, that tackles the negative findings of fact against him.  Indeed, the much-repeated bare assertion in the applicant’s written submission that his life would be in danger if he should return to India is inconsistent with the findings of both the Director and the Board.

18.The complaint of lack of transparency made in both the notice of appeal and written submission are utterly groundless given the lengths to which the Director, the Board and the Judge have given reasons for their decisions.  As for the allegation that “facts”/”reality” has been ignored, the applicant has not identified a single relevant matter that is said to have been overlooked. 

19.In short, the applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the findings by the Board.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and rightly dismissed.  Nor did he in the notice of appeal or the written or oral submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

Disposition

20.For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.  

The applicant, unrepresented, appeared in person