RE SATISHA BHADREGOWDA

CACV 21/2022

[2022] HKCA 944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 21 OF 2022

(ON APPEAL FROM HCAL NO. 174 OF 2019)

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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 dated 31 December 2021 of Deputy High Court Judge Bruno Chan 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 10 January 2019.

2.  Despite the directions of the Registrar of Civil Appeals of 10 January 2022, the applicant failed to lodge written submissions by the stipulated time.  The applicant was deemed to have abandoned his right to rely on written submissions, and the notice of appeal was referred to the Court of Appeal for consideration based on available documents.  Further, the applicant has consented to the appeal to be disposed of on paper without an oral hearing.  We will deal with the present application on paper based on the documents filed by the applicant.

2)  Background

3.  The applicant is a national of India.  He arrived in the Mainland in January 2010 and illegally entered Hong Kong in February 2010.  He later raised a non-refoulement claim.  The applicant’s torture claim was on the basis that if he returned he would be harmed or killed by Jayaram because he failed to repay a debt owed to him.

4.  The details of the applicant’s claim have been summarized by the Judge at [2] to [3] of the CALL‑1 Form.

3)  The Director’s Decisions     

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 24 November 2014.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Hong Kong Bill of Rights (‘BOR 3’), as well as her other statutory and convention rights against torture and persecution (‘Director’s Decision’).

6.  The Director decided against the applicant’s right to life claim on 9 February 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Hong Kong Bill of Rights (‘BOR 2’).

4)  The Board’s Decisions

7.  The applicant appealed/petitioned against the Director’s Decisions to the Board.  After a hearing on 10 August 2015, the Board dismissed the applicant’s appeal/petition against the Director’s Decision on 17 November 2016.

8.  The Board held that torture risk, persecution and BOR 3 risk all relate to whether there are grounds for future risk of harm.  It held that there were serious doubts on the credibility of the applicant.  The future risk of harm is low.  Internal relocation was possible.

9.  The applicant petitioned against the Director’s Further Decision to the Board.  After a hearing held on 31 October 2018, the Board dismissed the applicant’s petition against the Director’s Further Decision on 10 January 2019.

10.  The Board held that although the applicant complained that he was not given a chance by the Director to have an interview to explain his case, the Board had provided him that chance by granting him an oral hearing.  But at the hearing, all the petitioner did was to repeat that he was yet to repay his debt.  No additional information was provided.  The Board came to the same conclusion that the risk of being deprived of BOR 2 rights was not shown.

5)  Decision of the Judge

11.  The applicant filed a Form 86 with supporting affirmation before the Judge.

12.  The Judge held that the grounds stated in support for leave for judicial review were broad and vague assertions containing several key words and phrases without any particulars or specifics as to how they applied to the applicant’s case.

13.  The Judge held that the applicant merely repeated his claim for not being able to repay his debt.  In the absence of error or irrationality or procedural unfairness, there was no reasonable arguable basis for the intended challenge.

6)  Grounds of appeal

14.  The applicant stated in her notice of appeal several broad and vague assertions containing several key words and phrases without any particulars or specifics as to how they applied to the applicant’s case.

7)  Our view

15.  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 claims 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.

16.  In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground for his appeal.

17.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.