CACV 225/2022
[2022] HKCA 1566
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 225 OF 2022
(ON APPEAL FROM HCAL NO 1152 OF 2020)
________________________
BETWEEN |
| | SUKHBIR SINGH | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative
Interested Party |
_____________________
| Before: | Hon Chow JA and K Yeung J in Court |
| Date of Hearing: | 24 October 2022 |
| Date of Judgment: | 14 November 2022 |
_______________
J U D G M E N T
_______________
Hon Chow JA (giving the Judgment of the Court):
1. On 2 June 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 30 May 2022 (“the Order”) dismissing the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 5 June 2020, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 March 2018.
BACKGROUND
2. The Applicant is a national of India. He entered Hong Kong illegally through Mainland China, and raised a claim for non-refoulement protection by a Non-Refoulement Claim Form dated 13 February 2018. His claim was based on an alleged fear that, if refouled, he (and his father) would be harmed or killed by his uncle due to a dispute over some land which his father had inherited from his late grandfather. The Applicant relied on 3 specific incidents in support of his claim.
3. By a Notice of Decision dated 9 August 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: torture risk[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 5 June 2020, 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 that: (i) of the 3 incidents relied on by the Applicant, he failed to establish that his uncle had the intention to kill or seriously harm him or his father in the 1st incident, or that his uncle was the instigator or perpetrator of the 2nd or 3rd incidents, (ii) the dispute between the Applicant/his father and his uncle was a private dispute, and State/police protection was available to the Applicant in India, and (iii) internal relocation was an option reasonably open to the Applicant.
THE JUDGE’S DECISION
5. On 10 June 2020, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was set out in the Form 86, or in his supporting affirmation filed on the same day.
6. On 30 May 2022, the Judge dismissed the Applicant’s application for leave to apply for judicial review for the following reasons ([2022] HKCFI 1385):
“[2] The applicant filed Form 86 on 10 June 2020 for application for leave to apply for judicial review of the Board’s Decision.
[3] The applicant filed an affirmation dated 13 April 2022 to withdraw his application because there is no problem for him to return to his country.
[4] In accordance with the Court of Appeal in AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015:
‘It is well established that the court may exercise discretion not to grant a remedy on judicial review if it would serve no practical purpose, where it may have become otiose or pointless to grant a remedy because the relevant detriment to the applicant has been removed (De Smith’s Judicial Review (7th ed) at §§18-054 to 18-056; Judicial Review by Supperstone, Goudie and Walker (5th ed) at §18.18.1) ….’ [67]
[5] The application is therefore dismissed.”
THIS APPEAL
7. In his Notice of Appeal dated 18 July 2022, the Applicant stated as follows:
“… the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”
8. In his written submissions dated 1 August 2022, the Applicant made some generic submissions on principles of law relating to non-refoulement claims, but failed to explain how those principles were relevant to his appeal against the Judge’s decision. In particular, the Applicant failed to address the problem arising from his previous request to withdraw his application for leave to apply for judicial review, or point to any alleged error in the Judge’s decision.
9. At the hearing of the appeal, the Applicant alleged, for the first time, that the affirmation to withdraw his leave application filed on 13 April 2022 (referred to in §3 of the Judge’s decision) was not signed or file by him, and he did not know why someone would impersonate him and file the affirmation in the proceedings below. As regards the merits of his intended judicial review, the Applicant had nothing to add to what he had already stated in the Notice of Appeal and written submissions, and merely stated that he wanted to stay in Hong Kong because his problem in his home country had not yet been resolved.
DISCUSSION
10. The Applicant’s allegation that he did not sign or file the aforesaid affirmation was a new allegation which he had not raised in either his Notice of Appeal or written submissions. The Applicant was also unable to explain why he had failed to raise such allegation previously. We do not accept this late allegation of the Applicant.
11. In any event, out of an abundance of caution, we have considered the merits of his intended application for leave to apply for judicial review. It is well established that 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.
12. As earlier mentioned, the Applicant did not give any ground of judicial review of the Board’s decision in his Form 86 or his affirmation filed in support of the leave application on 10 June 2020. The matters stated in the Notice of Appeal dated 18 July 2022 and written submissions dated 1 August 2022 plainly do not constitute any valid grounds of judicial review. The Applicant has failed to make out any reasonably arguable case of error of law or procedural unfairness or irrationality in the decision of the Board. There is no proper basis for granting leave to apply for judicial review in the present case.
13. The Applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal | (Keith Yeung)
Judge of the Court of
First Instance |
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.