Jagjeet Singh v. Torture Claims Appeal Board / Non-refoulemnt Claims Petition Office

CACV 167/2022

[2022] HKCA 1292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 167 OF 2022

(ON APPEAL FROM HCAL NO 2333 OF 2018)

________________________

BETWEEN

________________________

Before:  Hon Yuen JA and Lisa Wong J in Court

Date of Written Submissions:  11 July 2022

Date of Hearing:  8 August 2022

Date of Judgment:  29 August 2022

________________________

J U D G M E N T

________________________

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

Introduction

1.On 19 April 2022, 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 19 October 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 4 January 2018 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.On 28 April 2022, the applicant filed a Notice of Appeal against the Judge’s decision. 

3.In compliance with the directions of the Registrar of Civil Appeals given on 10 June 2022 and Practice Direction 4.1, the applicant lodged his skeleton argument on 11 July 2022. 

Background

4.The Applicant is a national of India.  He entered Hong Kong illegally on 17 January 2016 and was arrested by police.  On 19 January 2016, he lodged a non-refoulement claim alleging that if refouled, he would be harmed or killed by his brother, Kuldeep, because of a dispute relating to their parents’ properties.  The factual background of this case is succinctly summarized by the Judge in [5] of the Form CALL-1 ([2022] HKCFI 1082).

5.By a Notice of Decision dated 4 January 2018, the Director assessed the applicant’s claim on applicable grounds including BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

6.The applicant lodged an appeal to the Board against the Director’s decision.  The appeal was heard on 13 June 2018 and by the decision dated 19 October 2018, the Board rejected the appeal/petition and confirmed the Director’s decision.  For the reasons set out at [37] to [74], the Board found that the applicant’s evidence was inconsistent and implausible.  On the totality of the evidence, the Board did not accept that the applicant came to Hong Kong because of the alleged threat from his brother, or that he had suffered any physical injury or mental sufferings as alleged.  It further rejected the suggestion that his brother would have the resources to pursue the applicant all over India.  There is no evidence to suggest any state instigation or acquiescence, and the relevant country of origin information suggested that there is reasonable state protection.  In any event, internal relocation is a viable option.  For the aforesaid reasons, his non-refoulement claim failed on all applicable grounds. 

Decision of the court below

7.On 24 October 2018, the applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision.  In his supporting affirmation, the applicant complained that the Board disregarded the danger and threats he had faced in his home country.

8.The applicant did not request for an oral hearing and the Judge disposed of the application on paper. By the decision dated 19 April 2022, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons for the refusal were set out at [12] – [17] of the Form CALL-1 as follows:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

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

‘13(1)  .… …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.’

15. The ground above is only his personal opinion without any evidence in support and it is not valid reason to challenge the Board’s Decision.

16. 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.

17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Appeal to this Court

9.On 28 April 2022, the applicant filed a Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following ground of appeal:

“I am disagree with the decision made by the [Director] as well as the Adjudicator of [the Board]. I do not think my case has been determined fairly.”

10.In the applicant’s written submissions, he advanced the following grounds:

(1)  He disagreed with the Board’s decision as it was determined unfairly.

(2)  He urged the authorities to take into account the procedural unfairness throughout the case and the public policy to quickly dispose of the non-refoulement claim.

(3)  His case is of great general or public importance and leave should be granted on the “or otherwise” limb.

(4)  The Board’s decision should be subject to review and it is unfair for the Court to say that it cannot interfere with such findings.

(5)  The hearing bundle was not provided to him at an early stage or with interpretation, and he did not understand what had happened at the hearing.

(6)  The Board had relied on the source of news which was not officially recognised or it was simply hearsay or outdated.  The lack of a credible source of information has resulted in them making groundless speculations that it is safe for him to return to his home country.

Legal principles

11.In assessing the merits 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 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 (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.

(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 applicant failed in his Notice of Appeal and written submissions to provide any valid ground of appeal against the Judge’s decision or to identify any specific errors or any other specific potential grounds for reversing the Judge’s decision. 

13.The Board rejected the applicant’s case on the issue of credibility as it did not accept that the applicant came to Hong Kong because of the alleged threat from his brother. He had applied for a passport well before the alleged threat from his brother. The Board also rejected his evidence on the brother’s threats as his evidence was inconsistent as to what his brother had done and when.  He said at first that he had escaped before the second attack took place, but later said he had been beaten up during the second attack.  There was also a considerable inconsistency in his allegations as to the length of time he hid in Chandigarh before coming to Hong Kong.  The Board concluded that he is not a genuine non-refoulement claimant.  It also concluded that internal relocation was a viable option as it was not accepted that his brother is capable of locating him all over India.  The assessment of risk and evidence is within the province of the Board, and the Court would not intervene with the Board’s findings unless there is an error of law or procedural unfairness or other irregularities.  As with the judge, we found none in this case.

14.Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

Order

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

The applicant, unrepresented, appeared in person