CACV 174/2022
[2022] HKCA 1118
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 174 OF 2022
(ON APPEAL FROM HCAL NO 926 OF 2019)
________________________
BETWEEN
| | VIRENDER SINGH | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative
Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
________________________
Before: Hon Yuen and Chow JJA in Court
Date of Written Submissions: 10 May 2022
Date of Judgment: 4 August 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):
INTRODUCTION
1. On 4 May 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 25 April 2022 (“the Order”)refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 25 March 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 February 2018.
BACKGROUND
2. The Applicant is a national of India. He entered Hong Kong illegally on 23 September 2015 and surrendered to the Immigration Department on 29 September 2015. On 26 June 2016, he lodged a non-refoulement claim, alleging that if refouled, he would be harmed or killed by Gurmeet Ram Rahim Singh (“Gurmeet”), the leader of a sect known as Dera Sacha Sauda (“DSS”), for refusing to sell a piece of land owned by him to Gurmeet/DSS at what he considered to be a low price, or donate the land to DSS. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.
3. By a Notice of Decision dated 15 February 2018, the Director rejected 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 25 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).
5. The Board’s reasons for its decision were summarised by the Judge at §§9 of the CALL-1 Form, as follows:
“Having considered the country of origin information on the political groups in India [21]-[23], the Board explored the applicant’s personal circumstance and his affiliations and interactions with Gurmeet and DSS [24]-[43]. In particular, the Board pointed out that certain aspects of the applicant’s claim were problematic [27]. He was also inconsistent about the features of the subject land, such as the size and value [33]. The applicant’s evidence about his encounters with Gurmeet and the alleged attacks were full of discrepancies without satisfactory explanations [34]-[42]. In these premises, the Board refused to accept that the applicant was the legal owner of the subject land or that such land was sought by the DSS members. It was also not persuaded that the applicant was a target of the DSS for refusing to sell the subject land to them [44]. As a result, the Board found that the applicant’s evidence was not credible.”
THE JUDGE’S DECISION
6. On 4 April 2019, the Applicant filed his Form 86 to seek leave to apply for judicial review of the Board’s Decision.
7. On 25 April 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“13. 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).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
15. 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.’
16. The Board has given its reasons in support of its Decision. The applicant has not raised any 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. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”
THIS APPEAL
8. In his Notice of Appeal filed 4 May 2022, the Applicant stated that he was not satisfied with the Judge’s decision because it did not accord with the facts and reality, and complained that there was no transparency in the decision.
9. In his 5-page written submissions dated 10 May 2022, the Applicant repeated his claim that he would not be safe in his home country. He raised some general allegations about the situation in his country, and requested to be allowed to stay in Hong Kong until he could solve his problem there. He also said that he was not satisfied with the decision of the Board because they “ignored so many things” which related to his case.
DISCUSSION
10. 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 v Director of Immigration[2018] HKCA 524 at §14(6)).
11. In particular, 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 errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. We do not see any such error of law, procedural unfairness or irrationality in the Board’s Decision in the present case.
12. The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 25 April 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.
(Maria Yuen)
Justice of Appeal | (Anderson Chow)
Justice of Appeal |
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 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.