Re Harjit Singh

CACV 585/2020

[2021] HKCA 727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 585 OF 2020

(ON APPEAL FROM HCAL 1163 OF 2018)

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Before:  Hon Barma JA and Lisa Wong J in Court

Date of Hearing: 10 May 2021

Date of Judgment:  21 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 Harjit SINGH, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 20 January 2020 refusing her leave to commence judicial review proceedings (“Judge’s Decision”).  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 12 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 19 October 2017 (“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 37, is a fear of being killed or otherwise harmed by Rattan Singh (“Rattan”), his paternal uncle and a supporter of the Indian National Congress Party (“INC”), over a land dispute.  The circumstances said to have given rise to such alleged fear were summarised in detail in paragraph 7 of the Director’s Decision and in paragraphs 25 to 36 of the Board’s D and [2] to [6] of the Judge’s Decision embodied in the Form CALL-1 dated 20 January 2020 [2020] HKCFI 91 (“Form CALL-1”).

3.Briefly:

(1)   The applicant’s father (“Father”) owned 3 kilas of farmland situated on 2 sides of Hasanpur Village, which the applicant had farmed from August 2014.  

(2)   Rattan, also a farmer, wanted to obtain one kila of such lands next to the main road (“Land”).  He offered to purchase the Land at 1/3 of the market value, which was rejected by Father.

(3)   One day in April or May 2015, Rattan and his 2 sons told the applicant to stop farming the Land.  A heated argument followed.  It turned into a fight.  The applicant was beaten all over his body by Rattan and his sons with wooden sticks.  The attack ceased upon the intervention of some neighbours.  Before he left, Ruben threatened to kill the applicant.  It took around 2 to 3 months for the injuries sustained by the applicant to heal.

(4)   The applicant did not complain about the incident to the police, which he thought would not listen.  He only reported the fight to the Village Council, which tried to intervene but to no avail.  Rattan threatened to kill the applicant after the meeting with the council.

(5)   Attempts to resolve the dispute through relatives did not work as Rattan would not listen to anybody.  Instead, he kept sending the applicant threatening messages.

(6)   One day in July 2015, Rattan and his son intercepted the applicant while he was on his way to town.  They demanded the applicant to give them the land and slapped the applicant on his face.  Again, the applicant did not report the attack to the police.

(7)   Thereafter, the applicant decided to go elsewhere to save his life.  As Rattan could locate him anywhere in India because of his INC affiliation, the applicant chose Hong Kong because a villager told him that he could seek asylum here.

(8)   Father has since leased the Land to other farmers.  According to the applicant, Rattan could not do anything to these farmers as they have political connections.

Entry into Hong Kong, arrest and lodgment and processing of NRF Claim

4.The applicant was refused landing and repatriated on the same day by the Hong Kong Immigration Department on 5 October 2015.  On 6 November 2015, he flew from New Delhi to Guangzhou first.  His attempt to gain entry to Hong Kong on 8 November 2015 via the Lok Ma Chau Control Point however failed. He then sneaked into Hong Kong illegally, and was arrested, on 13 November 2015.

5.The applicant lodged the NRF Claim on 15 November 2015.  He subsequently submitted a Non-refoulement Claim Form dated 20 September 2017. In processing the NRF Claim, the Director’s representatives interviewed the applicant on 18 October 2017.  He was provided with legal advice and representation by the Duty Lawyer Service.    

Director’s Decision

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

(1)   First, the low intensity of past ill-treatment from Rattan did not attain a minimum level of severity and further indicates a small future of risk of harm.  Save for the fight in 2015, Rattan resorted only to verbal threats.

(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 reforms have been and are on-going in India. The Indian government has taken active and practical steps to monitor the conduct of the police and improve their professionalism and effectiveness.

(3)   Third, reasonable internal relocation alternatives (e.g. New Delhi and West Bengal) are available in a country as vast and populous as India.  It would not be unreasonable for an able-bodied adult with around 6 years’ overseas working experience (prior to becoming a farmer in his home village) to locate to another village or city.

Appeal to Board and Board’s Decision

7.The applicant appealed to the Board on 27 October 2017.

8.The Board conducted a rehearing of the NRF Claim on 2 May 2018 at which the applicant, assisted by a Punjabi interpreter, testified before, and answered questions by, the Board.

9.The Board dismissed the applicant’s appeal on all 4 applicable grounds for non-refoulement protection.  First, the Board did not consider the past treatment to which the applicant was subject is of a severity or character to amount to persecution.  Even if it were, it did not occur on account of a Convention reason.  Second, the claim based on BOR 2 must also fail as the applicant has presented no credible evidence to suggest that his life was at real risk before he left India or that 2½ years later, his life would be at real risk if he were refouled to India.  Third, the BOR 3 claim is not made out because the Board did not consider the injuries suffered by the applicant amount to torture or CIDTP so that there are no substantial grounds for believing that he would face a real risk of being subjected to torture or CIDTP if he is refouled to India.  Fourth, the Board did not find any torture risk as the applicant’s past experiences do not amount to torture as defined in s 37U of the Immigration Ordinance.  There is no evidence that the conduct complained was inflicted by, or at the instigation of, or with the consent or acquiescence of any public official. The Board was also satisfied that reasonable state protection would be available to the applicant in India.  Lastly, the Board did not accept that it would be unsafe for the applicant to relocate elsewhere in India.

Application for leave for judicial review and Judge’s Decision

10.By a Notice of Application for Leave to Apply for Judicial Review issued against the Board under HCAL 1163/2018 on 21 June 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision, without stating any ground for relief in the Form 86.  As summarised by the Judge in [11] of the Form CALL-1, the applicant complained of the following in the accompanying affidavit:

(1)  that he was not provided any legal representation in his appeal before the Board;

(2)  that his case was determined unfairly by the Director and the Board;

(3)  that the Board wrongly exercised its case management about the COI as to the inefficiency of state protection and disregarded such on-going inefficiency by relying on other COI that support state protection in India;

(4)  that the decisions of the Director and the Board were not properly interpreted to him as he cannot read English and did not understand their contents, nor were the documents in his hearing bundle for his appeal before the Board; and

(5)  that the Board did not judge fairly the risk and threats which he would face in India.

11.The Judge refused leave after an oral hearing at which the applicant was present and assisted by a Punjabi interpreter.  His reasons can be found in [12]-[21] of the Form CALL-1:

“12.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

13.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

14.  As for his complaints under Grounds (2) and (5) that his claim of risk of harm had not been fairly determined by the Director and the Board, it is just a broad assertion without any particulars or elaborations that I do not find it reasonably arguable for his intended challenge.

15.  The same can be said about his complaint under Ground (3) in respect of the Board’s consideration of the relevant COI on state protection, given the fact that he had never sought assistance from the state or the police over the threats from his uncle, and having examined those relevant COI referred to in both the decisions of both the Director and the Board, I do not find any merit in this ground of the Applicant, nor is it reasonably arguable for his intended application either. 

16.  As for his complaint under Ground (4) of not being provided with a translation of the decisions of the Director or the Board, they cannot per se form the basis of any ground for review, whereas for the documents in the hearing bundle for his appeal before the Board, I note that most of the documents should by then be well familiar to him as it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

17.  As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

18.  In the Applicant’s case, as already noted above, in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge those decisions.

19.  Furthermore, the fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s 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.

20.  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.

21.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal and grounds of appeal

12.By a notice of appeal filed herein on 2 November 2020, the applicant appealed against the refusal of leave for judicial review on the purported ground that the Judge allegedly failed to show ay cause for refusing leave and for totally copying the Board’s Decision.

Failure to lodge skeleton submission and vacation of the oral hearing

13.In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 22 February 2021, the applicant failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 4 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

14.The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

15.The hearing date on 10 May 2021 was therefore vacated and the applicant was debarred from lodging any written submission.  We will proceed to deal with the appeal on paper on the basis of the materials already filed with the Court.

Discussion

16.We have set out the Judge’s reasons in full in [11] above.  It will be immediately apparent that the applicant’s allegation that the Judge has failed to give reasons is simply groundless.  Further, a review of such reasons against those of the Board (see [9] above) will show that the Judge has exercised his independent judgment and carefully dealt with each of the applicant’s proposed grounds for judicial review by applying the relevant case law and established legal principles and has not in any way copied the Board’s Decision.

17.Like the Judge, we do not find errors of law, procedural unfairness or irrationality in the Board’s Decision.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and the Judge rightly dismissed it.  In refusing leave for judicial review, the judge has not erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.

Disposition

18.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