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CACV 146/2021
[2021] HKCA 1366
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 146 OF 2021
(ON APPEAL FROM HCAL NO. 3008 OF 2018)
________________________
| RE: |
NAHAR KARAMVEER SINGH alias KARAMJIT SINGH |
Applicant |
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Before: Hon Cheung and Chu JJA in Court
Date of Judgment: 21 September 2021
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J U D G M E N T
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Hon Cheung JA (giving Judgment of the Court) :
1) The appeal
1. This is an appeal against the decision of Deputy High Court Judge P Li who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 30 March 2021.
2) Background
2. The applicant is a national of India. He came to Hong Kong as a visitor in August 2015 but overstayed. He then raised a non-refoulement claim in January 2016 on the basis that if he returned to India he would be harmed or killed by family members of his girlfriend because they opposed their inter-caste and inter-religious relationship.
3. The details of the applicant’s claim have been summarized by the Deputy Judge at [4] to [14] of the CALL-1 Form.
3) The Director’s Decision
4. The Director of Immigration (‘the Director’) decided against the applicant’s claim on 2 February 2018. The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.
4) The Board’s Decision
5. The applicant appealed against the Director’s Decision to the Board on 9 February 2018. After a hearing held on 12 October 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 28 December 2018.
6. The Board found that the applicant was not a witness of truth and it did not accept that the applicant was in a relationship with his alleged girlfriend who was from a different caste and religion. It did not accept that the applicant or his family were threatened or harmed by this girlfriend’s brothers or people associated with them. As the fundamental basis of the applicant’s claim was not accepted, internal relocation was not considered by the Board.
5) Decisions of the Judge
7. The applicant filed a Form 86 with a supporting affirmation. In his supporting affirmation, he stated that he was not satisfied with the Board’s decision, and he wanted to stay in Hong Kong until his problem was solved.
8. The Deputy Judge on 30 March 2021 held that the Board was right on the assessment of evidence. The inconsistencies in the applicant’s evidence were significant. There was no error of law and fact.
6) Grounds of appeal
9. The applicant in his notice of appeal stated the following :
‘ 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.’
10. The grounds of appeal as stated in the notice of appeal are bare allegations without specifics or elaboration.
11. In the applicant’s written submissions, the applicant reiterated that it was not safe for him to return to his home country. He pleaded for the Court to allow him to stay in Hong Kong. He stated that the Board ignored many things. He stated that the police are corrupt. He stated that there are examples of his case on the internet. He stated that his enemies were strong and he cannot fight them.
7) Our view
12. We will repeat the approach of this Court in dealing with cases of this nature :
(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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 their decisions.
(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge. In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.
(3) In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant. If no viable ground is put forward to reverse the Judge, the appeal should be dismissed. It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.
13. In our view there is no merit in the applicant’s appeal. We see no error in the Deputy Judge’s decision. Accordingly the appeal is dismissed.
| (Peter Cheung) |
(Carlye Chu) |
| Justice of Appeal |
Justice of Appeal |
Applicant, unrepresented, acting in person
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