RE LAKHWINDER SINGH

CACV 459/2022, [2023] HKCA 772

On Appeal From [2022] HKCFI 3281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 459 OF 2022

(ON APPEAL FROM HCAL NO. 167 OF 2019)

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J U D G M E N T

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 10 November 2022 by which he refused to grant leave to the applicant to apply for judicial review.  The applicant consented to his appeal being disposed of on paper in a written confirmation filed on 22 November 2022.

2)  Factual background

2.  The applicant is a national of India.  He arrived in Hong Kong on 26 August 2016 but overstayed.  He raised a non-refoulement claim on 13 October 2016.

3.  The basis of the applicant’s claim is that he would be harmed or killed by one Paramjeet Singh, who the applicant claims to be his uncle, because of a rental dispute with him over a piece of land leased to him by the applicant’s father who the applicant alleged had died.

4.  The background facts have been summarized in the decision of the Judge at [2] to [5].

3)  The Director’s Decisions

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 23 March 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 11 October 2018, the Board dismissed the applicant’s appeal on 28 December 2018 (‘the Board’s Decision’).

7.  The Board found that several aspects of the applicant’s evidence raises significant doubts about the credibility of his claims.  Before the Board, the applicant stated Paramjeet Singh was not related to him.  However in his non‑refoulement claim form, he stated that Paramjeet Singh was his paternal uncle.  The applicant gave different answers to the year of his father’s death.  The inconsistency of his evidence led the Board to conclude that his father is not in fact deceased.  There was little knowledge from the applicant about the rental agreement with Paramjeet Singh that his father entered into with him.  There was conflicting evidence of whether the applicant approached the police or not. The applicant was unsure whether he was attacked by a rod or a knife.  The Board found the applicant was not a witness of truth.  The applicant’s claim was not credible.  As his claim was not credible, the Board could not find any real risk of harm for the applicant returning to his home country.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

8.  The applicant made a number of complaints before the Judge.  They include that he was never legally represented. 

9.  The Judge held that the applicant never made such complaint before the Board.  The Judge held that such a ground was not reasonably arguable.  More importantly, the Judge held that the applicant’s case was rejected by the Board on its adverse finding of the applicant’s credibility.  

6)  Grounds of appeal and request for dismissal of appeal

10.  The applicant in the notice of appeal stated that the Director did not give weight to state acquiescence.  He stated that the Adjudicator failed to make sufficient enquiry.  He stated that he did not have sufficient chance to arrange his evidence.  He stated that the Director ‘kept including meaning which suited my [his] pre-conceived conclusion’.  All of these statements of the applicant are broad and vague and without particulars as to how the Judge was wrong.  The complaints must be considered against the fact that the Board has found the applicant was not a witness of truth.

11.  In his written submissions, the applicant referred to general legal principles, authorities and statute on non‑refoulement claim without specifying how they related to his case.

12.  On 19 May 2023, the Appeal’s Registry received a request from the applicant who indicated that he wished to dismiss his appeal in the present action. 

7)  Our view

13.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

14.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

15.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.

16.  This also accords with the applicant’s request (see paragraph 12 above).