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

CACV 176/2021

[2021] HKCA 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 176 OF 2021

(ON APPEAL FROM HCAL NO 1357 OF 2018)

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BETWEEN

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions:  19 July 2021

Date of Hearing:  17 August 2021

Date of Judgment:  24 August 2021

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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.On 8 April 2021, DHCJ K W Lung (“the Judge”)  refused 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 (“the Board”)  dated 4 July 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 16 November 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.On 19 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

3.The Applicant is a national of India.  He came to Hong Kong as a visitor on 2 November 2016 and was permitted to stay until 16 November 2016.  He overstayed and surrendered to the Immigration Department on 17 November 2016.  On 1 March 2017, he was convicted of the offence of “Breach of condition of stay – overstay” and a removal order was served upon him on 20 March 2017.  On the same day, the applicant lodged a non-refoulement claim on the basis that if refouled, he would be harmed by the members of Bharatiya Janata Party (“BJP”)  or its youth movement, as he had been standing near the assailant of one of their members who was killed in the attack, and they thought he was connected to the attack.  The factual background was succinctly summarized by the Judge in [4] – [5] of the Form CALL-1 ([2021] HKCFI 802).

4.By a Notice of Decision dated 16 November 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against him.

5.The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 14 June 2018.  For reasons given in its decision of 4 July 2018, the Board dismissed the appeal.  The Board accepted the applicant’s case that he had been a member of the youth wing  of the Indian National Congress Party (“IYC”)  and that he was present and suffered minor injury in the fight between IYC and BJP, during which his friend struck a BJP youth member Gagan and caused his death.[5]  Although the applicant claimed that he was suspected by BJP that he played a part in Gagan’s death and that BJP supporters had made death threats, the Board noted that the applicant was unharmed and there was no evidence suggesting that BJP supporters took any steps against him since May 2016.[6] Relevant Country of origin information (“COI”)  suggested that there is reasonable state protection[7] and in any event, internal relocation is a reasonable and viable option.[8]  For the aforesaid reasons, the applicant’s non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

6.On 11 July 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions.  In his supporting affirmation, he did not provide any grounds for his intended challenge save for saying that he was not satisfied with the Director’s decision and would like to appeal his case to a higher authority.

7.The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  In his decision dated 8 April 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [16] of the Form CALL-1 as follows:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), 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.”

14. His ground in support of this application does not assist his application.

15. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to this Court

8.On 19 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following grounds of appeal:

“the applicant will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the sources of news which is not officially recognized or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible sources of information has resulted in them making groundless speculations.”

9.In compliance with the Court’s directions of 22 June 2021, the applicant lodged his written submissions on 19 July 2021 in which he advanced the following grounds:

(1)  The Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director and the Board.

(2)  “High standards of fairness” is required in the determination of a torture claim but the Judge reviewed the matter lightly.

(3)  The decision has the effect of finally disposing of the applicant’s torture claim and making him liable to be removed.  This entails real and significant implications for the applicant’s substantive right not to be subject to torture and his right to non-refoulement protection.

(4)  The Judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director and the Board were required to give reasons justifying their decisions.

(5)  Although the applicant’s problems are severe and he had submitted all the proofs, the Judge did not take greater care and disappointed him.

(6)  The Judge failed to analyze the applicant’s case properly.

(7)  The Judge’s decision was unreasonable.

(8)  The Judge may not have received the applicant’s claims which had been refused by the Board and the Director.

(9)  The Board failed to give sufficient chance to him to arrange evidence for his appeal.

(10)  It is the applicant’s fundamental human right not to be subject to torture and thus the high standards of fairness is required.

(11)  The applicant will face hardship if he were to return to his home country and the Board had significantly relied on sources which is not officially recognized or on hearsay evidence.

(12)  The Board’s decision is irrational as it failed to evaluate and make a finding of fact as to whether a consistent pattern of gross and mass violation of human rights existed in India.

(13)  The Board had failed to analyze and assess whether state protection existed in India and misdirected itself as to the extended meaning of state protection.

10.At the hearing, the applicant had nothing to add.  

Legal principles

11.In assessing the merit of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and on appeal, which operates as a re-hearing, the Board.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.The grounds of appeal as set out in the Notice of Appeal and the written submissions are vague and general assertions without particulars or elaboration: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244. 

13.Here, the Board rejected the applicant’s case on the fact as he failed to establish, even on his account of events, that he had sustained any or any serious injury, nor there was any evidence suggesting he would face any real risk of harm upon his return to India.  As mentioned earlier, assessment of evidence, risk and COI was within the province of the Board, and the court would not intervene unless there exist valid public law grounds. 

14.Further, the Board had duly followed the proper procedures and provided reasonable opportunity to the applicant to supplement and amend the information he provided in the hearing bundles for the appeal hearing (see [6] to [9] of the Board’s decision)  and the Judge was entitled to say that he did not find any error of law or procedural unfairness or irregularities in the Board’s decision.

15.Having considered the material before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

16.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person