RE NAHAR KARAMVEER SINGH alias KARAMJIT SINGH

CACV 146/2021

[2022] HKCA 571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 146 OF 2021

(ON APPEAL FROM HCAL NO. 3008 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) :

I.  Leave to appeal to the Court of Final Appeal

1.  On 21 September 2021, this Court handed down a judgment ([2021] HKCA 1366)  (the ‘CA Judgment’)  dismissing the applicant’s appeal against the decision of Deputy High Court Judge P Li of 30 March 2021 in which he refused to grant leave to the applicant for judicial review.

2.  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in the CA Judgment.  We will not repeat them here.

3.  The applicant now applies, by a notice of motion dated 4 October 2021 (the ‘Notice of Motion’), for leave to appeal against the CA Judgment to the Court of Final Appeal.

4.  In his Notice of Motion, the applicant reiterated that it was not safe for him to return to India, and he pleaded for the Court to allow him to stay in Hong Kong.  No discernible grounds were mentioned in his Notice of Motion.

5.  His written submissions dated 11 October 2021 are the same as his written submissions dated 28 May 2021 lodged for the purpose of his appeal before us.  We have summarised his submissions at [11] of the CA Judgment, and we saw no merits in them ([13] of the CA Judgment).

6.  Pursuant to the direction of the Registrar of Civil Appeals (the ‘Registrar’), unless this Court otherwise directs, the Notice of Motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

II.  Legal principles

7.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484), leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

III.  Our view

8.  The matters stated by the applicant in his Notice of Motion and written submissions do not constitute grounds for granting leave to appeal to the Court of Final Appeal.

9.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the HKCFAO.  We are unable to see any such question being involved in the proposed appeal.

10.  Neither the Notice of Motion nor the written submissions identify any error in the CA Judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

11.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b)  of the HKCFAO.

IV.  Disposition

12.  For these reasons, the Notice of Motion dated 4 October 2021 is dismissed.

Applicant, unrepresented, acting in person

CACV 146/2021

[2021] HKCA 1366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 146 OF 2021

(ON APPEAL FROM HCAL NO. 3008 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Cheung JA (giving Judgment of the Court)  :

1)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge P Li 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 30 March 2021.

2)  Background

2.  The applicant is a national of India.  He came to Hong Kong as a visitor in August 2015 but overstayed.  He then raised a non-refoulement claim in January 2016 on the basis that if he returned to India he would be harmed or killed by family members of his girlfriend because they opposed their inter-caste and inter-religious relationship.

3.  The details of the applicant’s claim have been summarized by the Deputy Judge at [4] to [14] of the CALL-1 Form.

3)  The Director’s Decision

4.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 2 February 2018.  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

5.  The applicant appealed against the Director’s Decision to the Board on 9 February 2018.  After a hearing held on 12 October 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 28 December 2018.

6.  The Board found that the applicant was not a witness of truth and it did not accept that the applicant was in a relationship with his alleged girlfriend who was from a different caste and religion.  It did not accept that the applicant or his family were threatened or harmed by this girlfriend’s brothers or people associated with them.  As the fundamental basis of the applicant’s claim was not accepted, internal relocation was not considered by the Board.

5)  Decisions of the Judge

7.  The applicant filed a Form 86 with a supporting affirmation.  In his supporting affirmation, he stated that he was not satisfied with the Board’s decision, and he wanted to stay in Hong Kong until his problem was solved.

8.  The Deputy Judge on 30 March 2021 held that the Board was right on the assessment of evidence.  The inconsistencies in the applicant’s evidence were significant. There was no error of law and fact.   

6)  Grounds of appeal

9.  The applicant in his notice of appeal stated the following :

‘ I am not satisfied with the decision because its away from facts and reality which are related with my case. There is no any transparency in these decision. Please accept my application and allow me to process further my case.’

10.  The grounds of appeal as stated in the notice of appeal are bare allegations without specifics or elaboration.

11.  In the applicant’s written submissions, the applicant reiterated that it was not safe for him to return to his home country.  He pleaded for the Court to allow him to stay in Hong Kong.  He stated that the Board ignored many things.  He stated that the police are corrupt.  He stated that there are examples of his case on the internet.  He stated that his enemies were strong and he cannot fight them.

7)  Our view

12.  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.

13.  In our view there is no merit in the applicant’s appeal.  We see no error in the Deputy Judge’s decision.  Accordingly the appeal is dismissed.

Applicant, unrepresented, acting in person