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CACV 260/2021
[2022] HKCA 209
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 260 OF 2021
(ON APPEAL FROM HCAL NO. 2681 OF 2018)
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| RE: |
JAGTAR SINGH |
Applicant |
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Before : Hon Cheung and Yuen JJA in Court
Date of Judgment : 10 February 2022
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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 on 12 May 2021 who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).
2. On 18 May 2021, the applicant made a written confirmation for his consent to the appeal being disposed of on paper without an oral hearing. Accordingly, we will deal with the present application on paper.
II. Background
3. The applicant is a national of India. He entered Hong Kong illegally from Mainland China on 14 February 2016. He then raised a non-refoulement claim on 18 February 2016 on the basis that if he returned to India he would be harmed or killed by his paternal uncle Raju and his sons because of a land dispute.
4. 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
5. The Director of Immigration (‘the Director’) decided against the applicant’s claim on 13 April 2018. 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 23 April 2018. After a hearing held on 3 August 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 14 November 2018.
7. The Board found that the applicant was not a witness of truth and had fabricated his claims on the land dispute.
V. Decision of the Judge
8. The applicant filed a Form 86 with a supporting affirmation. In his supporting affirmation, he stated that it was not safe for him to go back, and he wishes to stay in Hong Kong until he solves his problem.
9. The Deputy Judge on 12 May 2021 held that the applicant’s grounds did not assist his application. There was no error of law or procedural unfairness that could be found.
VI. Grounds of appeal
10. The applicant in his notice of appeal stated the following :
‘ I am not satisfied with the decision because its away form fact 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.’
11. The grounds of appeal as stated in the notice of appeal are bare allegations without specifics or elaboration.
12. In his written submissions, the applicant stated that his case was ignored, that the decisions were not transparent, he needed time to solve his problem, there is internet evidence to show how his people treat him, his country was corrupt, and he needed a kind favour for him to stay in Hong Kong.
VII. Our view
13. 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.
14. In our view, there is no merit in the applicant’s appeal. The Deputy Judge had provided his reasons of refusal in his decision.
15. We see no error in the Deputy Judge’s decision. Accordingly, the appeal is dismissed.
(Peter Cheung)
Justice of Appeal |
(Maria Yuen)
Justice of Appeal |
The applicant, unrepresented, acting in person
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