RE RASU RAMAKRISHNAN

CACV 472/2018

[2019] HKCA 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 472 OF 2018

(ON APPEAL FROM HCAL NO. 153 OF 2018)

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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 Josiah Lam given on 13 September 2018 in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1  The applicant is a national of India.  On 4 May 2014 he entered Hong Kong legally but he subsequently overstayed.  He raised a torture claim on 23 May 2014.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by a creditor who was an incumbent minister of the Tamil Nadu state where the applicant used to live.

2.3  The background facts have been summarized in the decision of the Judge at [1]-[13].

3)  The Director’s Decision and the Director’s Further Decision                                    

3.1  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 21 March 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2  By a further decision of the Director of 30 August 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 27 September 2017, the Board dismissed the applicant’s appeal on 19 January 2018 (‘the Board’s Decision’).

4.2  The Board found that there were glaring contradictions between the applicant’s (i) first statement made to the Director on 23 May 2014; (ii) non‑refoulement claim form dated 17 December 2015; (iii) screening interview by the Director on 3 March 2016.  For example, the applicant originally said his creditor was a person named Rajan.  He later changed his story and said he owed Sellur money. The Board found the applicant an unreliable witness.  The Board found that even if the version of events by the applicant was true (which was not found as such), the complained situation was only a money dispute of a private nature and the applicant had not been inflicted with severe ill‑treatment.  It was therefore insufficient, in any event, to engage convention or BOR 2 and 3 protection. 

5)  Decision of the Judge

5.  The Judge dealt with the grounds of appeal as follows.  He held that the applicant has no absolute right to free legal representation at all stages of the proceedings.  He found that the applicant has exaggerated his problem of English understanding, as his Form 86 and supporting affirmation were prepared in English, or that he has access to someone who understands English.  He held that the Director’s letter inviting the applicant to submit further information on BOR 2 claim and the Director’s Further Decision were sent to the applicant according to his reported address.  The applicant’s bare allegation of not receiving the documents was unfounded.  Further the applicant did not demonstrate what further BOR 2 claim he would have submitted.  He held that there were no grounds to complain about the failure to properly consider country of origin information when the applicant’s case was rejected based on his lack of credibility. 

6)  Grounds of appeal

6.1  The applicant in the notice of appeal stated that he missed the Court date before the Judge because he was not informed of the hearing.  He complained that the Judge was unfair and unreasonable and he requires language assistance.

6.2  The applicant in his written submissions stated that the Judge wrote ‘I am sure that was the case at all material times’ with regard to the language assistance.  He complained that the Judge had erred in making such an assumption.  The applicant suggested that the reason why there was no further interview to consider his BOR 2 claim was because he did not submit further information, but he did not explain the basis of his view.  He complained that the Judge was wrong in concluding that it was a bare assertion for the applicant to allege that he did not receive documents from the Director.  At the hearing of the appeal, he repeated that his life will still be in danger if he was to return to his home.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  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 of 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].  None of these errors are present in this case.  In particular, the Notice of Hearing relating to the hearing before the Judge was sent to the applicant’s address provided in the Form 86 by both registered post and ordinary post.  There could be no reasonable excuse for him not to attend the hearing.

7.2  Accordingly, the appeal is dismissed.