RE GANESAN SATHIYARAJ

CACV 182/2020

[2020] HKCA 956

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 182 OF 2020

(ON APPEAL FROM HCAL NO. 1637 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

1.1   This is an appeal against the decision 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 2 June 2020.

1.2   This appeal was scheduled to be heard on 16 November 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 29 July 2020, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)    Background

2.1   The applicant is a national of India.  He entered Hong Kong legally as a visitor but overstayed.  He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by his employer because of a money dispute.  

2.2   The details of the applicant’s claim have been summarized by the Judge at [4] to [6] of the CALL‑1 Form.

3)    The Director’s Decision

3   The Director of Immigration (‘the Director’) decided against the applicant’s claim on 8 December 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his 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 28 February 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 9 August 2018.

4.2   The Board found the applicant’s evidence during the Board hearing to be very different from his previous claims as recorded in his papers.  His claim that one Mr. Arasu was a member of a political organization at the relevant time was false.  The Board did not accept that the applicant’s moneylender could locate him anywhere in India.  The Board did not accept that police protection was unavailable.  The Board did not believe that the moneylender instructed his men to beat the applicant.

5)    Decision of the Judge

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

5.2   The Judge did not accept the applicant’s bare claims.  He held that finding of facts was within the province of the Director and the Board.  As the applicant did not show any reasonable prospect of success, the Judge refused to give leave to apply for judicial review.

6)    Grounds of appeal

6   The applicant in his notice of appeal stated that the Judge failed to consider threats made against him and he failed to give reasons for the assessment of BOR 3 risk.  

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 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.

7.2   In our view there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

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