CACV 632/2020
[2021] HKCA 1442
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 632 OF 2020
(ON APPEAL FROM HCAL 2954/2018)
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BETWEEN |
| | GURJANT SINGH | Applicant |
and |
| | TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
| ----------------------------------------- |
Before: Hon Barma JA and Au JA in Court
Date of Hearing: 17 September 2021
Date of Judgment: 4 October 2021
___________________
J U D G M E N T
___________________
Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge P Li given on 25 November 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 21 December 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 4 November 2014 and 9 May 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of India. He last entered Hong Kong on 15 September 2014 but was refused permission to land, where upon he lodged a non-refoulement claim the same day.
3. The applicant’s claim was based on threats from members of an opposing political party, the Akali Dal Party (“ADP”). The details of the applicant’s claim have been summarised by the judge at [3] to [14] of the CALL-1 Form. In gist, the applicant claimed that Shinder of the ADP invited him to join the ADP which was the ruling party in the place where the applicant lived, but he refused. Afterwards, he was attacked on 5 occasions by Shinder and/or other ADP supporters. The applicant tried to file a police report but the police refused because Shinder was an influential man. At the Board hearing, the applicant claimed that Shinder died from a traffic accident and the ADP people blamed the applicant for the accident and were looking for him.
4. By a Notice of Decision dated 4 November 2014 (“the Director’s First Decision”), the Director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2] and the torture risk[3].
5. By a Notice of Further Decision dated 9 May 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.
6. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 5 July 2017, the Board dismissed the appeal on 21 December 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.
7. At [20], [21], [31] and [32] of the Board’s Decision, it was held that:
“20. The Appellant has been in Hong Kong since August 2014. Shinder has been dead since May 2016. When Shinder died, the Appellant was already in Hong Kong.
21. Furthermore, if the Appellant were to return to India and moves to another area and does not participate in any political activities, my view is that he should be completely safe from any feared attacks from Shinder’s friends or any other persons. I cannot accept that Shinder’s friend are so powerful that in a vast country like India with such a large population, they can have the means and resources to find the Appellant and cause him danger.
…
31. I find that from the evidence, he has not shown that his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion should he be returned to the frontiers of a Risk State. In the light of the evidence, I find that there is no reasonable possibility of any persecution risk.
32. In the light of my findings above, there is no necessity for me to consider the possibility of internal relocation for the Appellant to escape from any threats…He has many options for relocation in India and it would be very difficult for Shinder’s friends, if they were minded to find him, to locate him among such a large population and in such a large country.”
The judge’s decision
8. The applicant filed a Form 86 on 24 December 2018 which contained no ground for seeking relief.
9. In his affirmation in support of the leave application filed on 24 December 2018, the applicant deposed that:
“I am not satisfied with the decision given by the [Board]. I have problem in my own country. Please help me to stay in Hong Kong until I have problem.”
10. The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.
11. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [26] to [30] of the CALL-1 Form:
“26. The applicant applied for leave to apply for judicial review on 24 December 2018. In his supporting affirmation, he pointed out that he was not satisfied with the TCAB decision. He had problems in his home country.
27. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duties of the TCAB and the Director. In general, this court would not interfere.
28. The applicant had not made specific complaint of any error in the decisions of the TCAB and the Director.
29. In my judgment, there is no error of law or procedure. The decisions are reasonable.
CONCLUSION
30. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.”
Grounds for appeal
12. In the Notice of Appeal filed on 3 December 2020, the applicant stated that:
“I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any Transparency in these decision. Please accept my application and allow me to process further my case.”
13. In his skeleton submissions lodged on 12 May 2021, the applicant submitted that:
(1) it is not safe for him to return to India;
(2) the applicant is not satisfied with all the decisions against him. These decisions ignored matters related to his case and were not transparent;
(3) the decision makers wrongly assessed the situation in India. They did not appreciate the threats to the applicant. Their decision was not transparent;
(4) the applicant needs to stay in Hong Kong until his problems in India are resolved;
(5) the police in India are corrupt and they torture and kill innocent people; and
(6) it is difficult for the applicant to get justice in the corrupt environment of India.
14. The applicant agreed by a letter of 3 December 2020 that the appeal could be heard by two judges. The hearing for the appeal was originally fixed for 22 June 2021. On 24 June 2021, this court directed that the Director be joined as a Putative Interested Party and the hearing be adjourned to 17 September 2021. The Director was directed, among other things, to address the court on the following matters:
(1) the assessment of the applicant’s claims for protection based on BOR2 risk and BOR3 risk by the Board; and
(2) the assessment of the viability of internal relocation by the Board, in light of the Court of Appeal’s decision in MD Nazir Ahmed Sarkar ([2021] HKCA 918, particularly at [65]
15. The Director (represented by Mr Harvik Tse of the Department of Justice) filed a written submission on 30 August 2021. The Director maintained a neutral position in the appeal and reserved his position in the substantive judicial review if the appeal should be allowed and leave to bring judicial review proceedings granted. The Director submitted that:
(1) the Board only gave short reasons for dismissing the applicant’s claim that he will face real risk of torture or BOR 3 risk. It can however be inferred that the Board formed the view that the injuries sustained in the previous attacks did not attain a minimum level of severity and that the death of Shinder negated the risk faced by the applicant. If the court cannot find such inference or consider that there were insufficient reasons, this may be a ground for allowing the appeal;
(2) if the court considers that the Board failed to make sufficient enquiries into the risk of harm coming from people other than Shinder, this may be a ground for allowing the appeal;
(3) if the court is of the view that the Board made the error in (2), then it follows that the Board failed to properly address the issue of internal relocation.
Discussion
16. We consider that there are aspects of the Board’s Decision which meet the threshold test for granting leave for judicial review. First, as the Director submitted, the reasons given by the Board for finding that the applicant did not face any real risk of harm were very short. We accept that it was open for the Board to find that the risk of harm from Shinder no longer existed. We also note that on one reading of [20] of the Board’s Decision, the Board appears to not accept the applicant’s claim that he was blamed for Shinder’s death. However, the Board never dealt with the applicant’s claim that he was targeted by ADP supporters before the death of Shinder. In the applicant’s case before the Board, Shinder was not involved in the first, second and fourth of the five attacks the applicant allegedly suffered. We therefore think that there are sufficient doubts as to whether the Board had properly considered all material aspect of the applicant’s claim for protection, so as to justify the grant of leave for judicial review. Whether or not any judicial review proceedings will succeed at the end of the day will be for the court hearing those proceedings to determine, and we do not express any view as to their ultimate outcome.
17. Second, as this court have held in MD Nazir Ahmed Sarkar[2021] HKCA 918, in considering the viability of internal relocation the Board has to identify the source of risk of harm (the persecutor) and evaluate the extent and influence of the persecutor. As the Director fairly accepted, if it is reasonably arguable that the Board did not properly ascertain the sources of risk of harm, it follows that the Board’s evaluation of the viability of internal relocation would also come into question.
18. Third, the Board’s finding that internal relocation would be viable was apparently conditioned on the non-participation in “any political activities” by the applicant ([21] of Board’s Decision). It is reasonably arguable that this condition was unduly harsh to the applicant (TK v Jenkins & Anor [2013] 1 HKC 526) and that the Board ought to have considered whether the applicant could safely relocate to other parts of India should he choose to engage in political activities there.
19. Fourth, the Board appears to have accepted that the applicant may face some risk of harm upon his return, albeit that it could be mitigated by internal relocation. In the circumstances, the Board should also have had regard to the adequacy of state protection, given that it is the applicant’s case that he could not make a report to the police and that the ADP had influence over the local police. This issue was arguably not adequately addressed in the Board’s Decision.
20. In our view, each of the four issues considered above passes the threshold test for granting leave for judicial review. Given their significance, notwithstanding the fact that these matters were not raised before the judge, we are of the view that this appeal should be allowed and leave for judicial review be given to the applicant to seek judicial review of the Board’s decision on the basis of these grounds.
21. As for the other grounds advanced by the applicant in the Notice of Appeal and skeleton submission, these wholly lacked particulars. They are entirely without merit, and we would not give leave to bring judicial review proceedings on those bases.
22. We would therefore allow the appeal, and grant leave to the applicant to bring judicial review proceedings in respect of the Board’s decision. As noted above, the Director has reserved his position in respect of such proceedings, which must therefore take their normal course. We would remind the applicant that pursuant to RHC Order 53 rule 5, such proceedings should be commenced by Originating Summons within 14 days from the date of this judgment, being the date on which leave to bring judicial review proceedings was granted. If the applicant wishes to apply for legal aid in connection with the judicial review proceedings he has been given leave to commence, he should do so as promptly as possible.
23. As the Director has only participated in this appeal at the court’s request, and bearing in mind that the grounds of appeal advanced by the applicant have been unsuccessful, we make no order as to costs in respect of the appeal.
(AARIF BARMA)
Justice of Appeal | (THOMAS AU)
Justice of Appeal |
The applicant appeared in person
Mr Harvik Tse, Government Counsel of the Department of Justice, for the putative interested party
[1] 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.
[2] 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 and its 1967 Protocol.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.