RE INDERJIT SINGH

CACV 111/2019

[2019] HKCA 743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 111 OF 2019

(ON APPEAL FROM HCAL NO. 1228 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

1.1   This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung given on 27 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2   This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 29 March 2019, the applicant failed to lodge the skeleton argument by 21 May 2019.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1   The applicant is a national of India.  On 15 November 2012, he came into Hong Kong legally but he overstayed.  Prior to that date, he was in Hong Kong briefly for one day on 10 November 2012.  He was subsequently arrested by the Police.  He raised a non-refoulement claim on 1 August 2013.

2.2   The basis of the applicant’s claim is that he would be harmed or killed by Balwinder Singh and his two sons for having a land dispute with him.  His parents were seriously injured by Balwinder Singh and his gang.

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

3)   The Director’s Decision and the Director’s Further Decision

3.1   The Director decided against the applicant’s torture claim on 16 October 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2   By a further decision of the Director of 16 March 2017, the Director also assessed Bill of Rights Article 2 (right to life) risk (‘BOR 2’) in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

4)  The Board’s Decision

4.1   The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 16 May 2017, the Board dismissed the applicant’s appeal on 25 June 2018 (‘the Board’s Decision’).

4.2   The Board found that the general credibility of the applicant was undermined due to inconsistencies and contradictions inherent in the applicant’s case.  The Board found the applicant’s evidence vague and generalized.  Much of the applicant’s evidence was not within his personal knowledge but was hearsay, and the Board attached little if not no weight to the applicant’s hearsay evidence.

5)  Decision of the Judge

5.   The Judge addressed the applicant’s grounds for judicial review.  He held that there was no merit in the applicant’s BOR 2 argument where he complained that he received no notice.  The Board had waited for the Director’s Further Decision before holding a hearing for the applicant so that all issues in the appeal might be dealt with together.  The applicant’s complaint that the Director’s Decision was not translated to him did not prevail either, as the applicant admitted that he understood both the Director’s Decision and the Board’s Decision. 

6)  Grounds of appeal

6.   The applicant in the notice of appeal referred to his grounds of appeal in his supporting affirmation which stated that, without explanation, the Judge was wrong in law in holding that there was no state acquiescence or involvement, and the Judge failed to provide detailed reasons in the Decision of the Judge. 

7)  Our view

7.1   We are of the view that the applicant’s appeal is without merits.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  Nor is it open to an applicant to advance new grounds which were not advanced before the Judge.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of 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].  None of these errors exists in this case.  As to the grounds put forward by the applicant, the first ground was not raised in the Court below and is not open to him on appeal, and the second ground is plainly wrong as the Judge gave adequate reasons for his decision.

7.2   Accordingly, the appeal is dismissed.