RE SAWINDER SINGH

CACV 618/2020

[2021] HKCA 998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 618 OF 2020

(ON APPEAL FROM HCAL NO. 2901 OF 2018)

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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

1.1  This is an appeal against the decision of Deputy High Court Judge P. Li 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 November 2020.

1.2  Despite the directions contained in the letter from the High Court to the applicant dated 1 March 2021, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of India.  He arrived in Hong Kong on 14 July 2015 but was refused permission to land.  He then raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by one Bagicha Singh (BS) and his son Jaspal Singh (JS).  BS asked the applicant to join his political party but the applicant refused.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [3] to [12] of the CALL‑1 Form.

3)  The Director’s Decisions    

3.1  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 21 September 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.

3.2  The Director further decided against the applicant’s right to life claim on 7 February 2017.  The decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decisions

4.1  The applicant appealed against the Director’s Decision of 21 September 2015 to the Board.  After a hearing held on 17 December 2015, the Board dismissed the applicant’s appeal against the Director’s decision on 12 January 2016.

4.2  The Board found that the applicant’s alleged injuries do not amount to the definition of torture under the Immigration Ordinance.  There was no evidence of state acquiescence.  There was no evidence that BS and JS were politically connected with the alleged incidents.  The injuries did not amount to the minimum level of severity.  The alleged incidents were private in nature.  The applicant failed on all applicable grounds.

4.3  After the Board’s Decision of 12 January 2016, the Director invited the applicant to file further evidence for BOR 2 claim but the applicant did not respond.  The Director then issued a rejection.  The applicant then belatedly filed a notice of appeal against such rejection.  The Board on 14 February 2018 made its decision in respect of the Director’s further Decision of 7 February 2017.  The decision was based on the failure of the applicant to give a reasonable explanation for the delay and also on the merits of his case.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation.  The applicant simply stated that the Board and the Director disregarded his dangerous situation.

5.2  The Judge on 10 November 2020 held that in judicial review, the Court is to decide whether there is any error in law and procedure.  The Judge held that based on the available evidence he could not find any such error.  He further held that the Board was justified to refuse the applicant’s late filing of the notice of appeal to appeal against the rejection of his BOR 2 claim.  

6)  Grounds of appeal

6.  The applicant in his notice of appeal again simply stated that his dangerous situation was disregarded.

7)  Our view

7.1  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. 

7.2  In our view there is no merit in the applicant’s appeal.  The Judge had provided sufficient reasons for his refusal to grant leave.

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