RE TARSEM SINGH

CACV 147/2021

[2021] HKCA 1403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 147 OF 2021

(ON APPEAL FROM HCAL NO. 1319 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 25 March 2021.

II. Background

2.  The applicant is a national of India. He arrived in Hong Kong illegally and was later arrested by the Police in June 2013. He then raised a non-refoulement claim in May 2016 on the basis that if he returned to India he would be harmed or killed by members of the political group called the Indian National Congress (‘INC’) because of a land dispute where the INC wanted to take away his family land.

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 16 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

5.  The applicant appealed against the Director’s Decision to the Board. After a hearing held on 11 June 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 4 July 2018.

6.  The Board found that the inconsistencies in the applicant’s evidence raise doubts as to its reliability. The Board accepted that the applicant was assaulted on two occasions and the applicant suffered bruising and scratches. However, in respect of the allegation that the applicant was threatened there was no evidence to support such threat was carried through. Minimum level of severity was not met. It was a dispute on land. There was no evidence of dispute occurring because of race, religion, nationality, membership of a particular social group or political opinion. No real risk of persecution was found. There was no evidence that the applicant tried to hide himself when he was sent back to India. There was a failure to establish a well-founded fear.

V. Decisions of the Judge

7.  The applicant filed a Form 86 with a supporting affirmation. In his supporting affirmation, he stated that the Director’s Decision was unreasonable in that he failed to consider the matters raised in his claim and give adequate reasons for his decision.

8.  The Deputy Judge on 25 March 2021 held that the grounds relied upon by the applicant are based on his opinion only without evidence in support. The Board had clearly given reasons and considered the applicant’s claims. It did not disbelieve all the applicant’s evidence outright.

VI. Grounds of appeal

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

‘ I am not satisfied with the decision because its 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.’

10.  This ground is without specifics or elaboration.

11.  In the applicant’s written submissions, he reiterated that it was not safe for him to return to his home country. He pleaded for the Court to allow him to stay in Hong Kong. He stated that the Board ignored many things, the Police were corrupt and there are examples of his case on the internet. He stated that his enemies were strong and he cannot fight them.

VII. Our view

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 no merit in the applicant’s appeal. The Deputy Judge had provided his reasons of refusal in his decision.

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