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CACV 292/2021
[2021] HKCA 1561
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 292 OF 2021
(ON APPEAL FROM HCAL 1073 OF 2018)
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| BETWEEN |
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VIKRAMJIT SINGH |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD |
Putative Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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Before: Hon Chow JA and ST Poon J in Court
Date of Judgment: 1 November 2021
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JUDGMENT
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Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 31 May 2021 refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 6 April 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 June 2017 rejecting the Applicant’s non-refoulement claim.
2. The present appeal was scheduled to be heard on 25 October 2021. However, despite the directions contained in a letter from the High Court to the Applicant dated 13 August 2021, the Applicant failed to lodge his skeleton argument by the stipulated time. Accordingly, the hearing was vacated, and the appeal is dealt with on paper.
BACKGROUND
3. The Applicant is a national of India. He entered Hong Kong on 20 December 2008 as a visitor with permission to stay up to 3 January 2009. He overstayed and was arrested on 15 January 2009. On 18 January 2009, he raised a torture claim, which was rejected on 10 October 2013. His appeal against the rejection of his torture claim was dismissed by the Board on 17 February 2014. On 19 October 2015, the Applicant withdrew his non-refoulement claim and expressed a wish to return to his home country. However, on 20 February 2017, he requested that his non-refoulement claim be re-opened. Later, he provided a supplementary claim form on 10 May 2017, and participated in an interview with an immigration officer.
4. The Applicant’s claim is based on an alleged fear that if refouled to India, he would be at a risk of being harmed or killed by the family of his ex-girlfriend and their associates affiliated with the Congress Party because he is a Sikh and they do not approve of their relationship. Details of the Applicant’s claim have been summarised by the Judge at §§1-3 of the CALL-1 Form.
5. By a Notice of Decision dated 20 June 2017, the Director rejected the Applicant’s non-refoulement claim on the following grounds: BOR 2 risk[1], BOR 3 risk[2], and persecution risk[3] (“the Director’s Decision”).
6. The Applicant appealed the Director’s Decision to the Board. On 12 December 2017, the Board heard the appeal.
7. On 6 April 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”). The Board found serious credibility concerns regarding the Applicant’s claimed relationship with his ex-girlfriend (see Board’s Decision at §§37-38). The Board considered that there were a number of significant inconsistencies between the Applicant’s written statements and oral evidence (§§39-45). The Board found that the Applicant was not entitled to non-refoulement protection in Hong Kong since he had failed to substantiate any of the grounds based on BOR 3 risk (§47), BOR 2 risk (§48), and persecution risk (§49).
THE JUDGE’S DECISION
8. On 11 June 2018, the Applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review of the Board’s Decision.
9. The Applicant advanced no ground for seeking relief and merely stated that he rejected the decision of the Board because it had disregarded his dangerous situation. He did not provide any particulars or elaboration and did not complain of any procedural irregularity, unfairness, or unreasonableness (see Form CALL-1 at §8).
10. In his decision, the Judge emphasised that judicial review does not operate as a rehearing of a non-refoulement claim, and is not an avenue for revisiting the assessment made by the Director and the Board (§9).
11. The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny (§12). The Judge did not find any evidence of procedural unfairness or failure to adhere to a high standard of fairness by the Board (§12), and was not satisfied that there was any realistic prospect of success in the Applicant’s intended application for judicial review (§13).
12. Accordingly, on 31 May 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.
THIS APPEAL
13. In his Notice of Appeal dated 31 May 2021, the Applicant simply wrote that he would like to reject and review the Board’s Decision because the Board had disregarded his dangerous situation. As the Notice of Appeal did not contain any proper grounds of appeal, the Applicant was asked to file a Supplemental Notice of Appeal. In his Supplemental Notice of Appeal dated 2 August 2021, the Applicant stated that he did agree with the High Court and did not understand why the court dismissed his application for leave to apply for judicial review.
DISCUSSION
14. 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if the application was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).
15. The Applicant has failed to show that the judge made errors of law or failed to take account of relevant matters already placed before him, or was otherwise plainly wrong. He has failed to raise any viable ground of appeal.
16. For the above reasons, the present appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal |
(ST Poon)
Judge of the Court of First Instance |
The Applicant, unrepresented, appeared in person
[1] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
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