Mandeep Singh v. Torture Claims Appeal Board

CACV 530/2021

[2022] HKCA 667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 530 OF 2021

(ON APPEAL FROM HCAL NO 157 OF 2019)

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Before:  Hon Kwan VP and Cheung JA in Court

Date of Written Submission:  3 December 2021

Date of Judgment:  20 May 2022

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.On 24 November 2021, Deputy High Court Judge Bruno Chan refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant lodged a Notice of Appeal against the judge’s decision on 29 November 2021.

2.The applicant is a national of India. He is 33 years old. He entered Hong Kong illegally on 26 October 2015 and was arrested by the police on 27 October 2015. He lodged his non-refoulement claim on 29 October 2015 on the basis that he will be harmed or killed by his uncle over a land dispute if he returns to India.

3.The applicant consented to the disposal of this appeal on paper by the Court of Appeal. He lodged his written submissions on 3 December 2021. This appeal can be dealt with by two judges pursuant to section 34B(4)(ac) of the High Court Ordinance, Cap 4.

The Director’s decision

4.By a Notice of Decision dated 22 January 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

5.Taking into account the intensity and frequency of the past ill-treatment the applicant had allegedly faced, the Director did not accept that the perceived ill-treatment from his uncle, whether physical or mental, is substantial as the applicant had asserted. The Director considered there is no substantial ground to believe that the claimed future risk of harm from the applicant’s uncle is real and foreseeable. The Director further found that the applicant’s problem is a private dispute without any state involvement, and also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

The Board’s decision

6.The applicant’s appeal against the Director’s decision was heard before the Board on 22 October 2018. The Board found that the applicant is not a credible witness because of the multiple inconsistencies and implausibility in his evidence as well as his non-persuasive explanations.  The Board considered that the applicant had fabricated his claims to create a basis for his application for non-refoulement protection. It was concluded that the applicant had failed to substantiate his non-refoulement claim and the Board rejected the appeal on 14 January 2019.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 17 January 2019 to seek leave to apply for judicial review against the decision of the Board. He only stated that he is not satisfied with the Board’s decision and he has problem in his country without putting forward any specific grounds for his intended challenge.

The judge’s decision

8.DHCJ Bruno Chan considered the leave application on paper as the applicant did not request for an oral hearing. The judge found there is no error of law or irrationality or procedural unfairness in the process before the Board or in the Board’s decision. He also held that the Director and the Board have applied high standards of fairness in their consideration and assessment of the applicant’s claim. Thus, the judge concluded that there is no prospect of success in the intended judicial review and dismissed the leave application on 24 November 2021.

Grounds of appeal

9.The applicant stated the following grounds of appeal in the Notice of Appeal filed on 29 November 2021:

(1)  he is not satisfied with the decision because it is away from the facts and reality related to his case; and

(2)  there is no transparency in the decision.

10.His submissions in writing may be summarised as follows:

(1)  he is not safe in his country;

(2)  many things related to his case were ignored by the decision makers;

(3)  torture and deaths of innocent people in police custody are common in India because the police only support those who give them bribes;

(4)  there are many examples related to his case on YouTube or the internet showing how people like him are treated in his country; and

(5)  if someone like the applicant files a report with the police, they will tell those powerful people the name of the complainant.

Legal principles

11.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.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 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 Country of Origin Information (“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.

13.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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

14.The applicant’s grounds against the Board’s decision were not raised before the judge in his previous application. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

15.In any event, the Board did not accept the applicant’s claims as it found significant discrepancies in his evidence. In the present appeal, the applicant failed to provide evidence to refute the Board’s findings and/or provide explanation for the discrepancies.

16.Furthermore, it is noted that the applicant had told the Board at the hearing in October 2018 that his father would sell the land in the following year so he would buy land elsewhere from the sale profit and the applicant believed that his uncle would not harm him after the sale of the land. This shows that the risk of harm, if any, could be avoided by selling the land and/or moving to other places in India.

17.The judge’s decision in refusing to grant leave is well justified. The applicant failed to provide particulars or elaboration to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.For the above reasons, the appeal is devoid of merit. We therefore dismiss this appeal.

The Applicant (Appellant), acting in person