RE CHATER SAINGH

CACV 18/2021

[2021] HKCA 917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2021

(ON APPEAL FROM HCAL NO. 1046 of 2018)

________________________

________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 11 January 2021 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 31 October 2016 rejecting his non-refoulement claim against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 31 May 2018 dismissing his appeal against the Director’s decision.

2.  The applicant has consented to his appeal being determined on the papers without an oral hearing.

3.  Despite the direction and an unless order given by the Registrar of Civil Appeals, the applicant has failed to lodge any written submission by the extended deadline of 3 May 2021.  The applicant is deemed to have abandoned his right to rely on written submission, and we will process this appeal on paper based on the available materials.      

4.  The applicant is an Indian national aged 34.  He entered Hong Kong on 13 February 2013 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 28 July 2013.  He later raised a non-refoulement claim based on his fear of being harmed or killed by the family of his girlfriend, Shazia, because they disapproved their relationship and also blamed him for Shazia’s death.    The applicant’s case was set out in detail in the Director’s decision and also the Board’s decision, and summarised by the Judge in [2] to [4] of the Form CALL-1 dated 11 January 2021 ([2021] HKCFI 82).  We will not repeat it.

5.  By a Notice of Decision dated 31 October 2016, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4] grounds.   

6.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 7 March 2018, during which the applicant had answered questions put by the Board.  By its decision dated 31 May 2018, the Board dismissed the appeal.  In short, the Board found there were credibility issues with the applicant’s evidence and rejected his case that he had been in a relationship with Shazia and that she had committed suicide.  The Board also noted that the applicant accepted he would be safe in New Delhi where he had stayed for two and a half years before leaving for Hong Kong.  The Board held that the applicant’s fear of being killed or harmed was not made out on the evidence, and concluded that he failed to substantiate his non-refoulement claim under all applicable grounds.        

7.  The applicant filed his Form 86 together with a supporting affirmation on 8 June 2018 to seek leave to apply for judicial review against both the decisions of the Director and the Board.  The Form 86 did not contain any ground for seeking relief.  In the supporting affirmation, the applicant stated that he wanted to set aside the decisions because they disregarded the danger and threats he would face in his home country.       

8.  By his decision of 11 January 2021, the Judge refused to give leave to apply for judicial review.  The Judge pointed out that the applicant had not put forward any proper grounds for seeking relief, and had provided no particulars to support his assertions in the affirmation.  The Judge took note that the Board rejected his claim essentially on its adverse finding on his credibility, and considered there was no arguable basis to challenge the Board’s finding.  The Judge further had regard to the Director’s and the Board’s finding that the risk of harm in the applicant’s case was a localised one.  He found there was no error of law or procedural unfairness in either the Director or the Board’s decision, and concluded that the intended judicial review had no reasonable prospect of success.

9.  The applicant filed a Notice of Appeal on 21 January 2021 to appeal the Judge’s decision.  In it, the applicant stated that (1) there is a lack of representation; (2) his application has realistic chance of success; and (3) BOR 1 and BOR 2 risks could be established in his case. 

10.  The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].      

11.  In the present case, the applicant had not provided any proper ground for seeking relief by way of judicial review.  As such, his intended judicial review could not have succeeded.  In the circumstances, there was no basis on which the Judge could have granted leave to apply judicial review. 

12.  Further, what were stated in the notice of appeal do not constitute viable grounds of appeal.  They are broad and vague assertions unsupported by any particulars.  As pointed out by the Judge, his claim was disbelieved by the Board and there is no ground to overturn the Board’s finding.  As such, there is no proper basis for the assertion that he had a case under the Hong Kong Bill of Rights Ordinance, Cap. 383.  In the circumstances, the applicant’s appeal is unarguable.

13.  For the above reasons, we dismiss the appeal.