RE JAGSIR SINGH

CACV 293/2020

[2021] HKCA 88

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 293 OF 2020

(ON APPEAL FROM HCAL NO 1920 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 16 July 2020[1] dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 16 August 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 8 June 2018 rejecting his non-refoulement claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is an Indian national aged 32.  He entered Hong Kong on 20 April 2016 and was given permission to remain as a visitor until 4 May 2016.  He overstayed and surrendered himself to the Immigration Department on 10 May 2016.  On 14 July 2016 he raised a non-refoulement claim based on his fear of being harmed or killed by (1) the clients whom he had persuaded to invest in a finance company that he worked for and had since collapsed; and (2) the members or supporters of the Bharatiya Janata Party (“BJP”) because he caused the BJP candidate to lose in the 2014 election.

4.  The applicant’s claim was set out in detail in the Director’s first decision at [6].  In gist, the applicant claims that in 2015 when he was working for a finance company, he had invited people, including his relatives and friends, to invest in the company.  The company suddenly closed down and all the funds were taken by the company director.  The investors went after him to demand the return of their money.  Some of these investors had assaulted and threatened him.  The applicant feared he would be arrested by the police as some investors had threatened to report him to the police for fraud and cheating.    

5.  It is also the applicant’s case that he and his father were active supporters of the Congress Party (“CP”), and had in the past helped the party candidate to solicit votes and win the election.  Since 2014 the people of BJP targeted the applicant and his father because of their close association with CP and their active participation in the election campaign. They were assaulted and threatened on several occasions in 2014 and 2015, during which the applicant sustained various injuries and had to receive medical treatments.  He had reported these incidents to the police but no action was taken.  In the 2014 general election, the candidates of CP and BJP both lost and the BJP members blamed this on the applicant and attacked him with hockey sticks.  They also bribed the police and falsely accused the applicant of theft.  The applicant had to move from place to place to avoid being arrested by the police.  Through an agent, he made arrangement for coming to Hong Kong. He mortgaged his family home to raise fund for the trip.  In breach of his promise, the agent did not arrange jobs for him in Hong Kong.  The applicant was unable to repay his former clients and his creditor, who threatened to kill him if he failed to make repayment.  The applicant further claimed that, after he left the country, his father was attacked by BJP members and died in hospital from his injuries.        

6.  By his decision dated 8 June 2018, the Director rejected the applicant’s claim on the torture risk[2], persecution risk[3], BOR 2 risk[4] and the BOR 3 risk[5] grounds. 

7.  The applicant appealed the Director’s decision to the Board.  As a result of the applicant’s refusal to attend oral hearing, no oral hearing was arranged and the appeal was determined on the papers.   By its decision dated 16 August 2018, the Board dismissed the appeal.  The Board found the applicant failed to adduce credible evidence and that most, if not all, of his core assertions have been fabricated or are wholly unreliable.  It did not accept that the applicant’s alleged political activity had placed him at risk of harm from the BJP members/supporters.  The Board concluded that the applicant failed to provide objective grounds for showing that there was a real chance that the claimed fear would materialize and that his non-refoulement claim failed on the all applicable grounds.     

8.  On 13 September 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He did not set out any grounds for seeking relief in either the Form 86 or the supporting affirmation. 

9.  The Judge heard the application at an oral hearing held on 11 September 2019.  For reasons set out in [13] to [15] of the Form CALL-1, the Judge refused to give leave and dismissed the application:

“13. The applicant appeared before me and he confirmed that he was free to advance his case to the immigration officer and that he requested no hearing for his appeal because he had nothing to add to his evidence.

14. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

10.  By a Notice of Appeal filed on 24 July 2020, the applicant appealed the Judge’s order to this court.  He gave the following as his grounds of appeal:

(1)  The decision was far from the facts and the reality in his case.

(2)  There was no transparency in the decision.

11.  The applicant had filed a written submission, which advanced the following arguments:

(1)  Many things related to his case had been ignored and this shows the decision was not transparent.

(2)  The situation in his country is very different from what people think.  It is hard to live and to stand in front of his enemy.

(3)  Torture and deaths of innocent people in police custody is common.  Police would support those who bribe them.  They and other authorities were controlled by people with political influence.  It is very difficult to get justice under such corrupt environment.  He has no power to fight them and has to live under threat and fear. 

(4)  He is really in danger in his country and if he were to return there his life will become worsened due to his enemies.  People are helping him to solve his problem in his country, so he asks to be allowed to stay in Hong Kong until the problem is solved.

12.  We heard the appeal on 14 January 2021.  At the hearing, the applicant had nothing to say.

13.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board and/or the process by which the decision was made.

16.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.  In light of the established legal principles set out above, the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge. 

18.  In the present case, the applicant had not put forward any ground in support of his intended judicial review application.  The grounds he advanced in this appeal were not raised before the Judge.  It is not permissible in an appeal to argue grounds that had not been put forward in the court below. 

19.  In any event, the grounds of appeal are unarguable.  First, his complaint that the decision did not reflect the reality and that he would face danger and risk of harm if refouled is misplaced.  This is because assessment of credibility and evaluation of risk of harm are matters for the primary decision makers and not for the court.  Likewise, the matters raised in the applicant’s submissions are also irrelevant.  Second, his complaint that there is no transparency is a general assertion unsupported by proper basis.  

20.  We have nevertheless reviewed the Board’s decision.  We see no errors of law, or mistake of fact, or procedural impropriety in its decision and/or the process by which it reached the decisions.  There is no proper basis for the court to intervene by judicial review.   The Judge was correct to refuse leave to apply for judicial review.

21.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.