Case Document

100%Judiciary

CACV 419/2018

[2019] HKCA 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 419 OF 2018

(ON APPEAL FROM HCAL 1081/2017)

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RE:

NARINDER SINGH

Applicant

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Before:

Hon Cheung, Yuen and Barma JJA in Court

Date of Judgment:

1 February 2019

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan dated 17 August 2018 in HCAL 1081/2017 refusing leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board dated 8 December 2017, dismissing his appeal against the decisions of the Director of Immigration dated 16 May 2016 and 30 June 2017 rejecting his claims for non-refoulement protection.

2.The appeal was to be heard on 11 January 2019. By a letter to the applicant dated 5 October 2018, the applicant was directed to lodge skeleton submissions not less than 28 days before the hearing and was warned that if he failed to do so, he would be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper. The applicant failed to file any written submission by the stipulated time. The hearing date of the appeal was accordingly vacated, and we have dealt with this application on paper.

3.The applicant is an Indian national who allegedly entered into Hong Kong illegally on 25 August 2014 and was arrested the same day. The applicant raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle over a land dispute.

4.The background facts have been summarized in the Decision of the Judge, Form CALL-1, [2018] HKCFI 1605 at [2]-[4].

5.The Director decided against the applicant’s claim on 16 May 2016. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (“BOR 3”), as well as other statutory and convention rights against torture and persecution (“Director’s Decision”).

6.The Director decided against the applicant’s further claim on 30 June 2017 (“Director’s Further Decision”). The Director’s Further Decision covered applicant’s rights under Article 2 (right to life) of the Bill of Rights (“BOR 2”).

7.The applicant appealed the Director’s Decisions to the Board. After a hearing held on 1 November 2017, the Board dismissed the applicant’s appeal on 8 December 2017 (“Board’s Decision”).

8.The Board based its refusal on the following findings succinctly summarized in the Decision of the Judge at [9] of his decision:

“9. In its decision the Board found that the applicant has failed to prove the primary facts of his claim, that there was no real intention for his uncle to harm or kill him, that state protection as well as reasonable internal relocation alternatives are available for him in other places in India such as Delhi or Mumbai that there is no justification to afford him with non-refoulement protection…”

9.By his decision dated 17 August 2018, the Judge refused to grant leave to the applicant for judicial review.

10.The grounds for the intended judicial review before the Judge were that the Board breached procedural fairness in failing to carry out sufficient research and inquiry into COI, in failing to have regard to up to date COI, cherry picking COI information, failing to consider gross and mass violation of human rights, failing to consider extended state acquiescence, taking into account irrelevant considerations, failing to account for psychiatric evaluations, applying an incorrect standard of proof, and because there was insufficient legal representation for the applicant.

11.The Judge decided that these intended grounds were very broad and vague, without any particulars as to how they applied to the applicant’s case. The Judge also decided that most of the documents contained in the hearing bundle provided to the applicant were not unfamiliar to the applicant, who had been given sufficient time to prepare for his case given that the originally scheduled hearing before the Board was delayed for two months.

12.The applicant filed his Notice of Appeal to the Court of Appeal on 27 August 2018. He stated that his grounds of appeal were to be found to in his supporting affirmation.

13.The affirmation states at the beginning that:

“(1) The [Judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2) The [Judge] failed to provide detailed reason in support of her (sic) decision.”

14.The affirmation then went on to set out at length his background information and legal citations that were mostly the same as those set out in his supporting affirmation for leave for judicial review in HCAL 1081/2017. He then sets out a “Summary of Grounds of Review Challenging the Adjudicator’s (Respondent) Decision” which consists of nine grounds for judicial reviewing the Board’s Decision, all but one of which were relied on before the Judge and which have been dealt with by the Judge. He then elaborates on those grounds in a few paragraphs mainly arguing that the Board adopted outdated COI information. He briefly complained that he was not represented at the appeal stage, then goes on to repeat his complaints about the lateness of hearing bundles delivered to him before the Board hearing, and other complaints that have been dealt with by the Judge.

15.Neither of the two grounds referred to in paragraph 13 above has any merit. The Board, having concluded that the applicant had failed to establish the factual basis of his claim, did not need to deal with the question of state acquiescence. As to the suggestion that no sufficient reasons were given for the Judge’s decision, it is clear from the Form CALL-1 that adequate reasons were given.

16.The rest of the affirmation substantially repeats what was before the Judge, and focusses on the Board’s Decision. As we have repeatedly stated, the Court of Appeal would only examine the Decision of the Judge in light of the grounds advanced by the applicant. If no viable grounds is put forward to reverse the Judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review: Nupur Mst [2018] HKCA 524 at §14(6).

17.The applicant’s appeal is clearly without merits. Accordingly, the appeal is dismissed.