RE RANGI NIRVAIR SINGH

CACV 9/2023, [2024] HKCA 175

On Appeal From [2023] HKCFI 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 9 OF 2023

(ON APPEAL FROM HCAL NO. 641 OF 2020)

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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 3 January 2023 by which he reinstated the applicant’s application for leave for judicial review but refused to grant leave to the applicant to apply for judicial review. 

2)  Factual background

2.  The applicant is a national of India.  He arrived in Hong Kong as a visitor on 27 October 2016 but he overstayed.  He raised a non-refoulement claim on 17 November 2016.

3.  The basis of the applicant’s claim is that he would be harmed or killed by Navjot’s family because of his love affairs with her.  They had wrongly accused him of raping her and he feared that he might face a long sentence of imprisonment.

4.  The background facts have been summarized in the decision of the Judge at [2] to [3].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 22 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 hearings held on 31 July 2019 and 11 November 2019, the Board dismissed the applicant’s appeal on 1 April 2020 (‘the Board’s Decision’).

7.  The Board did not take issue with the applicant’s credibility.  On torture risk, the Board held that there was no evidence that the police were influenced or bribed by Navjot’s family.  Even if there was bribery, the applicant could seek assistance from police of higher level.  There was no sufficient evidence that the applicant will suffer severe pain and ill treatment even if he may be apprehended upon his refoulement.  On BOR 3 risk, the Board held that the applicant had represented all along that he was financially supported by his relatives in North America to fight his court case in India, and that he had been legally represented.  There was also no evidence that Navjot’s family influence extended to the Indian courts.  For the crimes alleged, it was unlikely that the applicant would face capital punishment.  India also applies common law.  The applicant was likely to have a fair trial.  State protection was available and internal relocation was possible.  Persecution risk was not established as the evidence did not fulfil any convention reasons.  On BOR 2 risk, the Board held that a fair trial will likely be provided if the Court finds that Navjot was not a credible person.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

8.  On 14 April 2020, the applicant applied by Form 86 and affirmation for leave for judicial review without setting out any grounds for judicial review.  Before the matter could be heard, on 22 December 2020 the applicant filed a further affirmation indicating that he wished to withdraw his case.  On 5 January 2021, Deputy High Court Judge P Li allowed the applicant to withdraw his case.  More than a year and a half later, on 15 August 2022, the applicant by summons and affirmation filed asked to re-open his case again because ‘…the problem in my country is started again…’.  The applicant’s complaint before the Judge was reinstated and the Judge dealt with the matter on the merits in his Form CALL-1 decision. 

9.  The Judge held that the applicant did not put forward any proper ground for his intended challenge.  The applicant’s case was rejected by the Board due to its finding that none of the applicable grounds for non-refoulement was established.

6)  Grounds of appeal

10.  The applicant in the notice of appeal stated ：

‘ (a) the Learned Judge had failed to consider all applicable grounds for non-refoulement claim and in particular non-refoulement on the grounds of risk of violation of articles 2 and 22 of the Hong Kong Bills of Right Ordinance;

(b) the Learned Judge was wrong in accepting the adjudicate finding that “the only fact established is that I am an Indian male, I face no risk of any harm at all” to conclude that the persecution risk failed.

(c) I respectfully ask the Court to grant leave to apply for judicial review.’

11.  The applicant did not address the Board’s finding that there was likely to be a fair trial in India in his notice of appeal.

7)  Our view

12.  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]. 

13.  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.

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

15.  We would also dismiss the applicant’s notice of appeal filed on 11 January 2023.