RE SHARMA ASHA

CACV 565/2019

[2020] HKCA 280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 565 OF 2019

(ON APPEAL FROM HCAL NO. 1684 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 of Deputy High Court Judge Woodcock (‘the Judge’) who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

2)  Background

2.1. The applicant is a national of India.  She arrived in Hong Kong as a visitor but overstayed and was arrested.  She then raised a non-refoulement claim on the basis that she would be harmed or killed by her paternal uncle over a land dispute with her father.

2.2. The details of the applicant’s claim have been summarized by the Judge at [2]-[7] of the CALL‑1 Form.

3)  The Director’s Decision      

3. The Director of Immigration (‘the Director’) decided against the applicant’s claim on 25 July 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 her other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1. The applicant appealed against the Director’s decision to the Board.  After a hearing held on 5 July 2018, the Board dismissed the applicant’s appeal on 3 August 2018.

4.2. The Board dismissed the applicant’s case on an assessment of her credibility.  The Board had set out in its decision the inconsistencies and discrepancies that seriously undermined the applicant’s credibility.  The Board found the applicant’s case hard to believe.  The Board rejected the alleged land claim with an uncle as well as the death of her parents and fiancé.  The Board did not accept that the applicant faced any prescribed forms of harm from her uncle if she returned to India.  Internal relocation was possible. 

5)  Decision of the Judge

5. The Judge considered the applicant’s submissions, newspaper clippings and hospital documents.  The Judge could not find any linkage between the documents submitted and her case.  The Judge accepted the Board’s findings.

6)  Grounds of appeal

6.1. In short, the applicant’s Notice of Appeal contains the following grounds of appeal :

(1) The applicant faces hardship if refouled.

(2) The Board relied on source of news which was not officially recognized or simply hearsay.  It has also relied on cases which were outdated.

6.2. The written submissions of the applicant are no more than a re-run of the facts and circumstances of the applicant’s case before the Board.  She seeks the court to ‘recheck’ her case.  She believed that returning was impossible because her identity will be revealed.  She believed that her land dispute is still a live issue and her enemy will kill her.  She quotes reports of killings from various sources of news and other information which have no relation to her case.

7)  Our view

7.1. 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 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.

7.2. In our view there are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

7.3. The claimant’s various complaints are against the Board, not the Judge.  It is not the role of the Court to examine the decision of the Board afresh.

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