RE TARSEM SINGH

CACV 147/2021

[2022] HKCA 551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 147 OF 2021

(ON APPEAL FROM HCAL NO. 1319 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I.  Leave to appeal to the Court of Final Appeal

1.  On 27 September 2021, this Court (Cheung and Chow JJA)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 25 March 2021 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by a notice of motion filed on 4 October 2021, for leave to appeal against our judgment to the Court of Final Appeal.   We will deal with the present application on paper without an oral hearing. 

4.  The applicant stated in his notice of motion:

‘ Respected Sir / Madam, it’s an my humble request to you that I have problem in own country please give me some time to stay here so that I can solve my problem. At this moment I cannot go back to my home country because danger still there for me. Please allow me to process further my case. I will be great full your kindness.’

5.  In his written submissions, he stated that it was not safe for him to return to his home country.  He stated that the Board ignored many things.  He stated that there are internet videos showing how people like him are treated.  He said it is difficult to get justice in a corrupted environment.  He wishes to stay in Hong Kong until his problems are solved.

II.  Our view

6.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (‘Ordinance’)  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.

7.  The matters stated by the applicant in his notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the Ordinance.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion or written submissions. 

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

III.  Disposition

9.  For these reasons, the notice of motion dated 4 October 2021 is dismissed.

Applicant, unrepresented, acting in person

CACV 147/2021

[2021] HKCA 1403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 147 OF 2021

(ON APPEAL FROM HCAL NO. 1319 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. The appeal

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 25 March 2021.

II. Background

2.  The applicant is a national of India. He arrived in Hong Kong illegally and was later arrested by the Police in June 2013. He then raised a non-refoulement claim in May 2016 on the basis that if he returned to India he would be harmed or killed by members of the political group called the Indian National Congress (‘INC’) because of a land dispute where the INC wanted to take away his family land.

3.  The details of the applicant’s claim have been summarized by the Deputy Judge at [5] of the CALL-1 Form.

III. The Director’s Decision

4.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 16 October 2017. 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.

IV. The Board’s Decision

5.  The applicant appealed against the Director’s Decision to the Board. After a hearing held on 11 June 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 4 July 2018.

6.  The Board found that the inconsistencies in the applicant’s evidence raise doubts as to its reliability. The Board accepted that the applicant was assaulted on two occasions and the applicant suffered bruising and scratches. However, in respect of the allegation that the applicant was threatened there was no evidence to support such threat was carried through. Minimum level of severity was not met. It was a dispute on land. There was no evidence of dispute occurring because of race, religion, nationality, membership of a particular social group or political opinion. No real risk of persecution was found. There was no evidence that the applicant tried to hide himself when he was sent back to India. There was a failure to establish a well-founded fear.

V. Decisions of the Judge

7.  The applicant filed a Form 86 with a supporting affirmation. In his supporting affirmation, he stated that the Director’s Decision was unreasonable in that he failed to consider the matters raised in his claim and give adequate reasons for his decision.

8.  The Deputy Judge on 25 March 2021 held that the grounds relied upon by the applicant are based on his opinion only without evidence in support. The Board had clearly given reasons and considered the applicant’s claims. It did not disbelieve all the applicant’s evidence outright.

VI. 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.  This ground is without specifics or elaboration.

11.  In the applicant’s written submissions, he 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, the Police were corrupt and there are examples of his case on the internet. He stated that his enemies were strong and he cannot fight them.

VII. 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. The Deputy Judge had provided his reasons of refusal in his decision.

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

Applicant, unrepresented, acting in person