Ghuman Jagtar Singh v. Torture Claims Appeal Board

CACV 263/2022

[2022] HKCA 1420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 263 OF 2022

(ON APPEAL FROM HCAL NO 399 OF 2019)

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Before:  Hon G Lam and Chow JJA in Court

Date of Written Submissions:  18 July 2022

Date of Judgment:  3 October 2022

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J U D G M E N T

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

1.On 5 July 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 21 June 2022 (“the Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 1 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 March 2018.

BACKGROUND

2.The Applicant is a national of India. He arrived in Hong Kong on 8 November 2014 as a visitor with permission to remain up to 22 November 2014. He did not depart and instead overstayed. On 27 November 2014, he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that, if he returned to India, he would be harmed or killed by his paternal uncle over a land dispute between his uncle and his father in their home village. Details of the Applicant’s claim were summarised by the Judge at §§1-6 of the CALL-1 Form ([2022] HKCFI 1866).

3.By a Notice of Decision dated 27 March 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s decision to the Board. On 1 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §10 of the CALL-1 Form, as follows:

“In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it did not consider him to be a witness of truth, that it was not satisfied he had told the truth as to why he left India or why he did not wish to return, and that there was no reliable evidence of the alleged death of his uncle’s son or that the Applicant had been threatened by his uncle that it was not accepted that he would face any such risk on his return to India or that he would be at risk of any of the proscribed harms upon his return to his home country that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

5.On 12 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

6.On 21 June 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[11] On 12 February 2019 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 just stated that he is not satisfied with the decision as his life is still not safe in his home country but 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 irrationality 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.

…

[13] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 65 – 90 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.

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

[15] 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.”

THIS APPEAL

7.In his Notice of Appeal dated 5 July 2022, the Applicant contended, inter alia, that:

(1)  The Director failed to appreciate or give proper weight to the presence of state acquiescence in the harm or threat of harm directed against the Applicant in India;

(2)  The Adjudicator failed to make sufficient enquiries before finalising his decision.

(3)  The Adjudicator failed to give a sufficient opportunity to the Applicant to arrange for relevant evidence to be adduced in support of his non-refoulement claim and his appeal.

(4)  There was a clear case of unfair attitude shown by the Director, as evidenced by the fact that the Director referred to or relied upon COI which suited his pre-conceived conclusion.

8.In his 4-page written submissions dated 18 July 2022, the Applicant made generic submissions on some general principles of law relating to non-refoulement claims, but failed to explain how they were relevant or applicable to his case.

DISCUSSION

9.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.The matters raised in the Applicant’s Notice of Appeal are new grounds which were not raised in his application below. The Applicant is not entitled to rely on such new grounds in the present appeal. In any event, his complaints are vague and general, and are directed against the decisions of the Director or the Board, but not the decision of the Judge. They do not give rise to any valid ground of appeal.

12.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 21 June 2022, and has failed to raise any viable ground of appeal against the Order.

13.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person