RE KAPOOR SHAILESH

CACV 159/2020

[2020] HKCA 948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 159 OF 2020

(ON APPEAL FROM HCAL NO. 975 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.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board.

2)  Background

2.1  The applicant is a national of India.  In January 2017 he entered Hong Kong illegally and was arrested.  He raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by the family of a victim struck and killed by him in a traffic accident.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [6] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration decided against the applicant’s claim on 31 August 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.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 10 May 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 25 May 2018.

4.2  The Board’s Decision found that while some accounts of the applicant were true, much of his evidence was contradictory and implausible and overall the Board considered the applicant’s claim incredible.  The applicant gave four different accounts of what had happened during an accident which led to the killing of a victim in a traffic accident.  The applicant was inconsistent with even the location of him being attacked.  The Board found that there was no credible evidence of where the applicant had lived between February 2015 and his eventual arrival in Hong Kong in January 2017.

5)  Decision of the Judge

5.1  The applicant complained before the Judge a variety of matters, including that his claim was rejected by the Board without full and fair determination, that he was not given legal representation and language assistance at the Board level, that the Director placed unleveled reliance on country of origin information, that no reasons were given about why the Director of Immigration did not personally attend at his appeal before the Board.

5.2  The Judge held that the applicant’s various complaints were all broad and vague assertions but without particulars of how they applied to his case.  He held that the legal authorities show that there was no absolute right to legal representation at all stages of the proceedings.  The applicant was assisted by an interpreter at his hearing before the Board and his complaint now was not raised during the Board hearing.  The mechanism of the hearing before the Board was for a different person (not the director) to assess the applicant’s case to ensure fairness.

6)  Grounds of appeal

6.1  The applicant in his notice of appeal stated that he was not satisfied with the Judge’s Decision as it departed from the facts, and that there was no transparency.

6.2  In the applicant’s written submissions, he again made bare allegations without specifics that the Court’s decision was not transparent.  He stated that the local police and authorities were very corrupt and would kill anyone as they please.  There are many examples available on the internet of people being tortured.  The Board ignored evidence.  He wishes to stay in Hong Kong until his problems are solved.

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 are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

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