RE VIJENDER KUMAR

CACV 336/2019

[2019] HKCA 1354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 336 OF 2019

(ON APPEAL FROM HCAL NO. 839 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

1.1  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 decisions of the Director of Immigration and the Torture Claims Appeal Board.

1.2  The applicant failed to comply with the directions of the Registrar of Civil Appeals of 12 August 2019 and did not file his skeleton submissions within the time specified.  As a result, the hearing fixed for 12 November 2019 has been vacated.  We will deal with the appeal on paper.

2)  Background

2.1  The applicant is a national of India.  He entered Hong Kong illegally.  He was referred to the Immigration Department and he subsequently raised a non-refoulement claim on the basis that he would be harmed or killed by his uncle and his sons over a land dispute in his home village in India.

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [7] of the CALL‑1 Form.

3)  The Director’s Decision

3.  The Director of Immigration decided against the applicant’s claim on 12 September 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (‘BOR 3’ and ‘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 on 19 September 2017.  After a hearing held on 25 April 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 27 April 2018.

4.2  The Board found the applicant’s evidence vague, implausible and unpersuasive that he was not considered to be a credible witness. The Board rejected his claim that he or his family had any dispute with his uncle or cousins over the farmland or that his uncle had any political profile.

5)  Decision of the Judge

5.1  The applicant complained before the Judge that :

(1)  the Director failed to appreciate state acquiescence;

(2)  the Director failed to recognize that he was tortured by the Indian authorities;

(3)  the Director failed to recognize that the Indian state should be liable for failing to provide reasonable protection to its citizens;

(4)  the Director failed to recognize the relevant COI that the police cannot protect its citizens;

(5)  the Director failed to recognize corruption in India;

(6)  the Director failed to apply high standards of fairness;

(7)  the Board failed to give the applicant sufficient time to arrange his evidence.

5.2  The Judge held that the applicant’s complaints are all vague and broad containing several key words and phrases without particulars or specifics on how they applied to the applicant’s case or how the Director or the Board had erred in their decisions.  The arguments were not reasonably arguable.   

6)  Grounds of appeal

6.  The applicant stated in his notice of appeal the following grounds :

(1)  The Judge did not apply the principle of irrationality;

(2)  The Board failed to give the applicant the chance to arrange his evidence;

(3)  The applicant will face hardship if he was to return to India and the Board relied on sources of information which were not officially recognized or were simply hearsay;

(4)  The Director or the Board relied on cases that were outdated;

(5)  The Director and the Board did not give reasons justifying their decisions.

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 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.  The Board’s decision and the decision of the Judge had already made the position clear.

7.3  It is the applicant’s bare allegation unsupported by any evidence as to how the fact finders or the Judge had failed in their assessment of the applicant’s case.  We agree with the Judge that the seven complaints by the applicant are allegations that are so broad, so vague and so lacking in particulars that it is impossible for the Court to have any reasonable assessment of these complaints.  The same applies to the five grounds of appeal.   

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