RE GURPREET SINGH

CACV 582/2019

[2020] HKCA 302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 582 OF 2019

(ON APPEAL FROM HCAL NO 1302 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving the judgment of the Court):

The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan[1] who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

Background

2.  The applicant is a national of India.  He arrived in Hong Kong on 18 January 2012 as a visitor but he overstayed and was arrested on 20 February 2012.  He then raised a non-refoulement claim on the basis that he would be harmed or killed by his girlfriend’s family which opposed their relationship.

3.  The details of the applicant’s claim have been summarized by the Judge at [2]-[6] of the CALL-1 Form and in [16] of the Board’s Decision.

The Director’s Decision     

4.  The Director of Immigration decided against the applicant’s claim on 21 August 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (“BOR 3” and “BOR 2”), as well as his other statutory and convention rights against persecution except torture risk, as his torture claim had already previously been rejected on 16 May 2013.

The Board’s Decision

5.  The applicant appealed against the Director’s decision to the Board.  After an oral hearing initially held on 20 December 2017 but adjourned to 11 April 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 21 June 2018.

6.  The Board held that the applicant failed to make out a case for non-refoulement protection, and that he did not come to Hong Kong genuinely for protection but had instead come to work.  The Board rejected the applicant’s case based on a lack of grounds under all three heads of risk: persecution risk, BOR 2 and BOR 3 risk.  It was unlikely the applicant would face any genuine risk of being subjected to ill-treatment upon his return to India.  The applicant had exaggerated the injuries he had sustained.  His girlfriend’s family was not politically influential.  State protection was available upon his return to India if resorted to.  Internal relocation was possible.  The dispute was private in nature; there was no suggestion of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.

Decision of the Judge

7.  The applicant applied for judicial review on the grounds stated in his affirmation dated 6 July 2018, which were broadly that:

(1)  The Director wrongly decided his case.

(2)  The Board did not address his grounds of appeal but came up with a template decision.

(3)  Given his previous experience with the Indian police, state protection was not available to him.

(4)  The Board placed undue weight on the reported availability of state protection.

(5)  The Board placed too much weight on the country of origin information that did not reflect the true situation in India.

8.  The Judge found the applicant’s complaints were mostly broad and vague assertions containing several pages of key words and phrases but without particulars or specifics of how they applied to the applicant’s case.  There was no merit in the applicant’s complaint regarding country of origin information as the Board had adopted a balanced view in considering such information.    

This appeal

9.  The applicant’s Notice of Appeal dated 16 December 2019 contains the following grounds of appeal, namely, that the gravity of the applicant’s circumstances has not been weighed or realized by the Board.  His affirmation of the same date states that there is a good ground of appeal that “was not necessarily considered that the stage of applying for leave for judicial review”.

10.  The applicant’s written submissions for this appeal dated 14 April 2020 contain several pages of quotations from legal authorities that are sometimes referred to in non-refoulement cases, but do not explain how those authorities or passages apply to the facts of this case at all.

11.  The approach of this Court in dealing with cases of this nature is well established:

(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.  Although 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 the evidence and COI materials and risk of harm, state protection and viability of internal relocation are matters 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 of the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if the appellant can demonstrate that the judge has made errors of law or failed to take account of relevant matters already placed before the Court or has taken into account irrelevant matters or his decision is 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 decision below, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for leave to apply for judicial review.

12.  In our view there are no merits in the applicant’s appeal.  The assessment of the risks faced by the applicant is a matter squarely for the Board.  The Board’s decision and the decision of the Judge have already made the position clear.  The burden of proof falls squarely on the applicant to make out a case of non-refoulement: AM v Director of Immigration [2014] 1 HKC 416 at 427.

13.  As to the vague suggestion in the applicant’s affirmation that there are grounds not considered below or not mentioned before the Director or the Board, it is trite that this Court will not entertain new arguments which are fact-sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40]-[41].

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