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

CACV 232/2023, [2023] HKCA 1237

On Appeal from [2023] HKCFI 1801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 232 OF 2023

(ON APPEAL FROM HCAL NO 1013 OF 2019)

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JUDGMENT

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

1.This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 20 July 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 15 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 May 2018.

BACKGROUND

2.The Applicant is a national of India.  He last entered Hong Kong illegally on 20 August 2015.  On 25 August 2015, he surrendered himself to the Immigration Department.  On 29 March 2016, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his family, relatives and/or other people in the Sikh community because he had converted from Sikhism to Christianity.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

3.By a Notice of Decision dated 28 May 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the 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 15 March 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 have been summarised by the Judge at §§9-10 of the CALL-1 Form, as follows:

“[9] Having considered the evidence, the Board noted that (i) the applicant was vague and failed to give a proper name of the institution in which he received his bachelor degree [49]-[50]; (ii) the medical reports indicated that his eye problem was not as serious as described [51]; (iii) the baptism certificate failed to support the applicant’s claimed conversion as it was not signed [54]-[59]; (iv) the documents provided by the applicant in support of his claim that he was disowned by the family were unconvincing [60]-[65]; (v) the applicant’s belief that his uncle and cousin were influential was in doubt [71]-[75]; (vi) the applicant’s explanation about why he still went to Sikh temples was unpersuasive [76]-[80]; and (vii) the applicant’s travel history also contradicted with his claim that he had to go to Sikh temples for food even after his alleged conversion [81]-[85].

[10] In conclusion, the Board found that the applicant’s behaviors did not show that he wanted to avoid the Sikh community.  He could have easily done so if he wanted to be safe as claimed since he had sufficient funds.  Further, the country of origin information provided several alternatives [86]-[99] and, in light of the above findings, the Board rejected the applicant’s claim and dismissed his appeal.”

THE JUDGE’S DECISION

5.On 15 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No proper ground for seeking relief was given in the Form 86 or in his affirmation filed on the same date.

6.On 20 July 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[16] The Board had assessed his evidence and, for the reasons given, rejected his evidence on the facts of his claim. The applicant has raised no valid ground to challenge the Board’s Decision.

[17] 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.

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

THIS APPEAL

7.In his Notice of Appeal dated 26 July 2023, the Applicant repeated his claim that his life would be in danger if he returned to India.  No proper ground of appeal is disclosed in the Notice of Appeal.

8.The Applicant failed to lodge any written submissions not less than 28 days before the scheduled hearing of the appeal, contrary to the directions of the Registrar of Civil Appeals dated 19 September 2023. Accordingly, he is deemed to have abandoned the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper.  Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

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’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

10.Further, the assessment of evidence, COI, 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: 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 Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review.  We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

12.The Applicant’s appeal against the Order has no merit and is dismissed.

The Applicant, acting in person

[1]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2]  This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]  This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.