RE JAGTAR SINGH

CACV 128/2021

[2021] HKCA 1460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 128 OF 2021

(ON APPEAL FROM HCAL NO. 1001 OF 2018)

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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 Bruno Chan of 12 March 2021 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).  The applicant agreed to have the appeal disposed of on paper by two judges.

II.      Background

2.  The applicant is a national of India.  In 2011, he came to Hong Kong but was refused permission to land.  He raised a torture claim which was rejected and he was later repatriated in 2012.  He came to Hong Kong again illegally in January 2014 and lodged a non‑refoulement claim in November 2014 on the basis that if he was to return to India he would be harmed or killed by his uncle and the uncle’s family members due to a land dispute.

3.  The details of the applicant’s claim have been summarized by the Deputy Judge at [2]-[5] of the CALL‑1 Form.

III.     The Director’s Decision

4.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 15 June 2017.  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

5.  The applicant appealed against the Director’s Decision to the Board on 26 June 2017. After a hearing held on 6 March 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 27 April 2018.

6.  The Board found that the applicant’s evidence was inconsistent and not persuasive.  He was not a credible witness.  The Board found there was no dispute between the applicant and his uncle and family members.  The Board found that the applicant’s claims were fabricated.

V.      Decisions of the Judge

7.  The applicant filed a Form 86 with a supporting affirmation.  No grounds were provided on his Form 86.  In his affirmation, he merely repeated his claim that his life would be in danger and he wanted to stay in Hong Kong.

8.  The Deputy Judge on 12 March 2021 held that evaluation of risk of harm was primarily a matter for the Director and the Board.  The Board had made an adverse finding on the credibility of the applicant and the applicant’s claim was rejected as a result.  In the absence of any error of law or procedural unfairness, there was no reasonably arguable basis to challenge the Board’s Decision.      

VI.     Grounds of appeal

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

‘ I am not satisfied with the decision because its away from facts 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.’

10.  The grounds of appeal as stated in the notice of appeal are bare allegations without specifics or elaboration.

11.  In the applicant’s written submissions, the applicant reiterated that it was not safe for him to return to his home country.   He pleaded for the Court to allow him to stay in Hong Kong. He stated that the Board ignored many things.  He stated that the Police were corrupt, there are examples of his case on the internet and his enemies were strong and he cannot fight them.

VII.   Our view

12.  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.

13.  In our view, there is no merit in the applicant’s appeal.  The Deputy Judge had provided his reasons of refusal in his decision.

14.  W e see no error in the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.