RE JAGROOP SINGH

CACV 545/2021

[2022] HKCA 504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 545 OF 2021

(ON APPEAL FROM HCAL NO. 160 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) :

I.  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant extension of time for leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) dated 7 August 2018and dismissed the application for leave to apply for judicial review.

2.  Pursuant to the directions of the Registrar of Civil Appeals on 6 December 2021, the applicant was required to provide written submissions to the Court by 20 December 2021.  The applicant has failed to do so, and pursuant to paragraph 8 of the same directions, the applicant is now deemed to have abandoned his right to rely on written submissions, and his notice of appeal will be dealt with on paper.

II.  Factual background

3.  The applicant is a national of India.  He arrived in Hong Kong illegally on 18 April 2015 and was arrested on the same day.  His claim for non-refoulement was that he would be harmed or killed by his family’s creditors for an outstanding debt and also he would be harmed or killed by an uncle of a friend over a land dispute.

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

III.  The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 23 October 2017.  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’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 19 November 2017 and after a hearing held on 11 April 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 7 August 2018.

7.   The Board found that the applicant had not provided credible evidence to support his claim.  Specifically, the applicant’s evidence was inconsistent, conflicting and contradictory which drew adverse credibility against him.  Furthermore, the Board did not find there would be real harm suffered if the applicant is returned to India as there is no government involvement in his private dispute.  Therefore, the applicant’s appeal was dismissed.

V.  Decisions of the Judge

8.  The applicant filed a Form 86 with a supporting affirmation on 17 January 2019.  No grounds of relief were set out in his Form 86.  In his supporting affirmation, he stated that he cannot go back to India as his life was still in danger.

9.  The Judge on 2 December 2021 held that the applicant’s delay of ten weeks of bringing an application for leave for judicial review was substantial and no explanation has been provided by the applicant.  In any event, the Judge considered the merits of the application and found that the applicant did not put forward any proper grounds to challenge the Board’s Decision.  There was no error of law or procedural unfairness that could be found and therefore, the application was dismissed.

VI.  Grounds of appeal

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

‘ I am not satisfied with the decision because ts [sic] away from facts and reality which are related with my case. There is no any Transparency in these decision. please accept my application and allow me to process further my case’

VII.   Our view

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

12.  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.

13.  In our view, there is simply no merit in the applicant’s appeal.  The Judge had provided his reasons of refusal in his decision.  There is no error in the Judge’s decision.  Accordingly, the appeal is dismissed.