RE MANJINDER SINGH

CACV 393/2020

[2021] HKCA 551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 393 OF 2020

(ON APPEAL FROM HCAL NO. 574 OF 2017)

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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) :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Campbell-Moffat J of 12 August 2020 in which she refused to grant leave to him to apply for judicial review.

2)  Factual background

2.1.  The applicant is a national of India.  He arrived in Hong Kong on 19 May 2012 but he overstayed and was arrested.  He raised a non-refoulement claim on 13 October 2013.

2.2.  The basis of the applicant’s claim is that he would be harmed or killed by the family members of a boy, who the applicant happened to have ran over with his car.

2.3.  The background facts have been summarized in the decision of the Judge at [4].

3)  The Director’s Decisions

3.1.  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 7 January 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2.  The Director decided against the applicant’s right to life claim on 15 November 2016 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights.

4)  The Board’s Decision

4.1.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 20 October 2016, the Board dismissed the applicant’s appeal on 3 April 2017 (‘the Board’s Decision’).

4.2.  The Board found that the applicant did not suffer any serious injury from the alleged attack.  It was an isolated incident.  There was no real intention from the family members of the boy to harm or kill the applicant.  There was no evidence of public official involvement.  There was no report to the local police.  There was no real chance that the applicant would be harmed.  The applicant failed on all applicable grounds.

5)  Decision of the Judge

5.1.  The applicant made a number of complaints before the Judge.  They include that the Board was wrong in holding that the level of risk of harm was low, that the applicant did not receive any letter for submitting further evidence, that the Board ignored overwhelming evidence of violence against him, or that the Board relied on country of origin information to his disfavour.  

5.2.  The Judge held that the Board correctly applied the relevant law and the relevant tests.  As to the applicant’s complaint that he ‘did not receive any invitation letter by which Immigration asked [him] for additional facts and grounds’, she held that the applicant was given the opportunity to give evidence before the Board but he elected not to.  He informed the Board that he had no further information to submit.  It was for the applicant to prove his case before the Board.  The applicant needed to show before the Board how it was the case that the country of origin information was wrong.  There was no evidence of overwhelming violence against the applicant.  The applicant failed to show where the bias alleged was.   

6)  Grounds of appeal

6.1.  The applicant in the notice of appeal requested that his grounds of appeal be referred to in his supporting affirmation.  In his supporting affirmation, he stated that the Judge was wrong in holding there was no state acquiescence and the Judge failed to provide detailed reasons.

6.2.  In his written submissions, the applicant referred to general legal principles and authorities on non-refoulement claim without specifying how they related to his case.

7)  Our view

7.1.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

7.2.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

7.3.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.