RE DHARMINDER SINGH

CACV 1/2022

[2022] HKCA 943

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1 OF 2022

(ON APPEAL FROM HCAL NO. 2731 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.  This is an appeal against the decision dated 21 December 2021 of Deputy High Court Judge K W Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 1 March 2019.

2.  Despite the directions of the Registrar of Civil Appeals of 3 January 2022, the applicant failed to lodge written submissions by the stipulated time.  The applicant was deemed to have abandoned his right to rely on written submissions with the notice of appeal being referred to the Court of Appeal for consideration based on available documents.  Further, the applicant has consented to the appeal to be disposed of on paper without an oral hearing.  We will deal with the present application on paper based on the documents filed by the applicant.

2)  Background

3.  The applicant is a national of India and was born on 15 September 1994.  He arrived in Hong Kong in January 2010 and was allowed to stay as visitor.  He eventually overstayed.  He later raised a torture claim jointly with his mother, his sister and the sister’s child.  The applicant’s torture claim (which is based on his mother’s claim) was on the basis that if he returned he would be harmed or killed by militants or terrorists of the Babbar Khalsa and the Khalistan Liberation Force in Punjab.  The torture claim was rejected by the Immigration Officer on 29 April 2013.  The applicant then together with his family members made a non‑refoulement claim on 14 July 2014.

4.  The details of the applicant’s claim have been summarized by the Judge at [5] to [7] of the CALL‑1 Form.

3)  The Director’s Decisions  

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 28 October 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 of the Hong Kong Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as his other statutory and convention rights against persecution except for torture risk which as mentioned earlier, was previously assessed and rejected by the Immigration Officer on 29 April 2013 (‘Director’s Decision’).

4)  The Board’s Decisions

6.  The applicant together with his mother and other family members appealed/petitioned against the Director’s Decisions to the Board on 8 November 2016.  After a hearing on 15 February 2019, the Board dismissed the applicant’s appeal/petition against the Director’s Decision on 1 March 2019.

7.  The mother, this applicant and his sister gave evidence at the hearing.  The Board held that although it accepted that the family received threats and lived with their uncle for some time for protection, the mother’s evidence in the hearing was that she was never harmed, and there were not attacks against them for several years.  The mother’s evidence was vague and unpersuasive.  The Board held that anyone who was interested in the mother and her family would have harmed them but they have not been harmed.  The Board confirmed the Director’s finding.

5)  Decision of the Judge

10.  The applicant filed a Form 86 with supporting affirmation before the Judge.

11.  The Judge held that the grounds stated in support do not assist the applicant.  No error of law or procedural unfairness in the Board’s decision could be found.

6)  Grounds of appeal

13.  The applicant stated in his notice of appeal several broad and vague assertions containing several key words and phrases without any particulars or specifics as to how they applied to the applicant’s case.

7)  Our view

14.  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 claims 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.

15.  In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground for his appeal.

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