RE MUNIAPPA THEVAR SANKAR

CACV 149/2021

[2021] HKCA 1367

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 149 OF 2021

(ON APPEAL FROM HCAL NO. 1320 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)  :

I.  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung 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 29 March 2021.

II.  Background

2.  The applicant is a national of India.  He last arrived in Hong Kong in March 2012 as a visitor but he overstayed.  He then raised a non-refoulement claim in May 2012 on the basis that if he returned to India he would be harmed or killed by one K Panneer Selvam (‘KPS’)  and his fellows of Dravida Munnetra Kazhagam (‘DMK’)  because of his involvement with all India Anna Dravida Munnetra Kazhagam (‘AIADMK’)  which opposes the DMK.  He said he would be harmed or killed by one Panneer Selvam (‘PS’)  and his follows of AIADMK because PS had an affair with his wife.

3.  The details of the applicant’s claim have been summarized by the Deputy Judge at [5] of the CALL-1 Form.

III.  The Director’s Decision   

4.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 15 October 2015.  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’), as well as his other statutory and convention rights against torture and persecution.

5.  The Director decided against the applicant’s right to life claim on 12 April 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

IV.  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 20 October 2015.  After a hearing held on 26 May 2017, the Board dismissed the applicant’s appeal against the Director’s decision on 25 June 2018.

7.  The Board found that on the evidence, the applicant gave different, and inconsistent, accounts of the factual basis on which he based on his claim of non-refoulement protection.  He failed to give any plausible, reasonable explanation for the inconsistent evidence.  His general credibility was undermined.  He submitted a document to the Board which was of dubious authenticity.  The Board found that the applicant was not an active member of the AIADMK as he claimed.  The Board was not persuaded that PS had threatened the applicant after having an affair with his wife. 

V.  Decision of the Judge

8.  The applicant filed a Form 86 with a supporting affirmation.  In his supporting affirmation, he stated that he still had political problem.  He stated that the opposition party was still looking for him and it would not be safe for him to go back.

9.  The Deputy Judge on 29 March 2021 held that the applicant’s grounds in support are only his opinion without any evidence or specific in support of it.  There was no error of law.   

VI.  Grounds of appeal

10.  The applicant in his notice of appeal stated the following :

‘ I cant go back to my country at this moment because my life is not save here. Please believe me to stay in the Hong Kong. So…I can save my life.’

11.  The grounds of appeal as stated in the notice of appeal are bare allegations without specifics or elaboration.

12.  In the applicant’s written submissions, the applicant stated that there was procedural unfairness.  He stated that the authorities disposed of his case as quickly as possible.  He stated that he has not been informed fully of his rights.  He stated that there was a greater care of duty that was not observed with him being self-represented.  All that was stated were short, bare allegations without specifics on how they applied to the particulars of his case.

VII.  Our view

13.  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.

14.  In our view, there is no merit in the applicant’s appeal.  The Deputy Judge had provided his reasons of refusal in his decision.

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