RE SAMINATHAN SASIKUMAR

CACV 281/2023, [2024] HKCA 90

On Appeal From [2023] HKCFI 2220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 281 OF 2023

(ON APPEAL FROM HCAL NO. 2927 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) :

1) The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 30 August 2023 by which he refused to grant leave to the applicant to apply for judicial review.

2) Factual background

2.  The applicant is a national of India. He arrived in Hong Kong as a visitor on 18 October 2015 but he overstayed. He raised a non-refoulement claim on 5 April 2016.

3.  The basis of the applicant’s claim is that he would be harmed or killed by supporters of two politicians called Vaithilingam and Parasuraman because he refused to join their political party. The applicant and his father belonged to another political party.

4.  The background facts have been summarized in the decision of the Judge at [2] to [5].

3) The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 25 April 2018. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, Article 2 (right to life) risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’). After a hearing held on 21 September 2018, the Board dismissed the applicant’s appeal on 20 November 2018 (‘the Board’s Decision’).

7.  The Board found material inconsistencies and discrepancies in the applicant’s evidence about threats from the supporters of a rival political party. He first based his claim by reason of political oppression, but he later changed the reason to being a dispute between his father and his neighbour over the use of river water in farming. The applicant was not involved but both he and his father were said to be falsely charged. The Board doubted his claim of fear of harm from the supporters of the rival political party. The Board found that the applicant could not show that he and his father were in a special position that made them the targets for killing. The Board found that if the applicant’s father was safe in India during the three years when the applicant was in Hong Kong, the applicant should be as safe as his father in India. The applicant failed on all applicable grounds.

5) Decision of the Judge

8.  The applicant’s complaint before the Judge was that he did not agree with the Board’s decision.

9.  The Judge held that the applicant did not put forward any proper ground for his intended challenge. The applicant’s case was rejected by the Board on its adverse finding on the applicant’s credibility.

6) Grounds of appeal and request for dismissal of appeal

10.  The applicant in the notice of appeal stated ：

‘ …the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.’

11.  The applicant did not address the Board’s finding on the applicant’s credibility in his notice of appeal.

12.  On 20 September 2023, the Appeal’s Registry received a request from the applicant who indicated that he wished to dismiss his appeal in the present action.

7) Our view

13.  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].

14.  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.

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

16.  This also accords with the applicant’s request to have his appeal dismissed.

17.  We would also dismiss the applicant’s notice of appeal filed on 12 September 2023 in accordance with the applicant’s request for dismissal of appeal.