Re Shamsher Singh

CACV 582/2018

[2019] HKCA 513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 582 OF 2018

(ON APPEAL FROM HCAL NO 385 OF 2018)

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J U D G M E N T

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

The appeal

1.This is an appeal by the applicant against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 12 December 2018, in which he refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”).

The background facts

2.A detailed account of the background facts and an analysis and evaluation of them was set out in the various decisions in relation to the applicant’s claim.  The following is a brief summary of the background facts.

3.The applicant is a national of India.  On 29 February 2012, he entered into Hong Kong as a visitor but overstayed.  On 23 November 2013, he filed a non-refoulement claim with the Immigration Department. 

4.The basis of the applicant’s claim was that he would be harmed or killed by Kashmir Singh (“Mr Singh”).  Mr Singh was a wealthy member of the village from which the applicant originates, as well as a member of the village council and a supporter of the Shiromani Akali Dal Party (“the SADP”).  He owns a piece of land next to the land belonging to the applicant’s father, and in 2009, a dispute arose between them. 

5.In 2011, the applicant actively campaigned against the election of Mr Singh to the village council by supporting another candidate who stood for the Congress Party (“the CP”).  In November of that year, Mr Singh with some armed men confronted the applicant, his father and brother, claiming that part of their land belonged to him.  There was a heated argument and the applicant was assaulted.  There was a further incident where crops on the land were damaged by Mr Singh and his men. 

6.The applicant claimed that later he learnt that Mr Singh was going to kill him because he opposed his election to the village council.  As a result, the applicant relocated himself to another village where he stayed for two months, but then returned to the village in early February 2012.  He further claimed that there were a few occasions when he was pushed by an unknown person, who would then run away, and he believed this was done because Mr Singh wanted to kill him.  He said that he was told by his father to leave India for his own safety.

7.The applicant explained that even though the CP became the ruling party in Punjab in 2017, he still believed it would be dangerous for him to return to his village.  As for the land dispute between his family and Mr Singh, the matter eventually went to court but no decision had yet been handed down. 

The Director’s Decision and Further Decision

8.The Director decided against the applicant’s torture claim on 13 November 2015.  The decision covered the BOR 3 risk (torture and inhuman treatment), the persecution risk, and the torture risk (“the Director’s Decision”).  He also decided against the applicant’s claim for risk of life under BOR 2 on 4 July 2017 (“the Director’s Further Decision”).

The Board’s Decision

9.The applicant appealed the Director’s decisions to the Board which was heard on 9 January 2018, which was dismissed by the Board on 2 March 2018 (“the Board’s Decision”).

10.The adjudicator found that when the applicant was confronted with questions about certain factual inconsistencies in his various accounts in relation to his claim, he simply said that he had provided all the information to the duty lawyer and in the Director’s interview.  

11.The adjudicator did not accept the applicant’s explanations for the inconsistencies and found that he had invented information to advance his claim.  He also found that there was no proof that Mr Singh had tried to kill him.  Nor was there any evidence of the applicant ever being attacked or threatened by Mr Singh or his men.  

12.In the result, the adjudicator concluded that the applicant failed to prove any risk that warranted non-refoulement protection.

Decision of the Judge

13.The Judge assessed the applicant’s application for leave to apply for judicial review.  He set out the relevant legal principles, noting that the Court would not intervene by way of judicial review unless there were errors of law, or procedural unfairness, or irrationality in the decision of the Board.  He also noted that in respect of the point that the applicant appeared in person, the Court of Appeal had repeatedly stated that high standards of fairness did not prescribe a non-refoulement claimant an absolute right to free legal representation at all stages of the proceedings. 

14.The Judge found that the applicant’s complaint about him experiencing language difficulties was without merit, as the applicant either had access to friends who could assist him in this regard, or had the assistance of an interpreter when he was legally represented, or before the Director or the Board.  

15.The Judge found that there was no delay in the delivery of court papers to the applicant as claimed, and that the applicant failed to specify or particularise the basis of his complaint that the adjudicator relied on outdated and unreliable information and materials about his home country.

16.The Judge concluded that none of the applicant’s complaints were substantiated or reasonably arguable, and accordingly refused to grant him leave to apply for judicial review.

Grounds of appeal

17.The applicant in his Notice of Appeal filed on 17 December 2018 stated that he will suffer hardship if he is returned to his home country, but fails to provide any explanation or information to justify this bare assertion.  He repeats his previous general complaint that the Board had significantly relied on outdated or unreliable information and materials about his home country, but yet again fails to provide any particulars to justify this bare assertion.

18.The applicant’s Notice of Appeal is a standard pro forma document that is commonly used in applications of this type which is expressed in general and broad terms about suffering hardship if he is returned to his home country and complaining about the Board’s reliance on information about his home country, without any apparent effort to list relevant and reasonably arguable grounds of appeal.  Had this document done so, it would have been appreciated that the basis of the Board’s dismissal of the applicant’s claim was because of his lack of credibility and the rejection of his evidence.

19.The applicant’s skeleton submission filed on 26 March 2019, in similar fashion to the Notice of Appeal, lacked relevance and specificity.  The skeleton submission is also a standard pro forma document that is commonly used in applications of this type.  It sets out in broad and general terms, various legal principles and concepts for non-refoulement cases such as “a high standard of fairness”, or that the court must assess with “rigorous examination and anxious scrutiny”, or that the court must give the applicant “every reasonable opportunity” to establish his claim.  It simply states various legal propositions without more.  Significantly, there is a complete lack of particulars as to how these legal principles and concepts, are relevant or apply to the particular facts and circumstances of the applicant’s case. 

Appeal hearing

20.In the hearing of this appeal, the applicant stated that his father was seeking to resolve the land dispute with Mr Singh which was currently before the court.  His father and family had requested that he return, because he had been away from home for a long time.  He also stated that he would return to his home country next year when the land dispute would be resolved, and he would be happy to do so.

21.The applicant asked that he be allowed to live in Hong Kong one more year.  He stated that it was difficult for him to live here, and that he had to rely on his brother-in-law who was here to support him.  He added that he married a local Chinese woman whom he was now divorcing and that he would be happy to return to his home country. 

22.The applicant expressed no concern about being harmed or killed by Mr Singh, nor did he mention any political rivalry between himself and Mr Singh. 

Our view

23.We are clearly of the view that the applicant’s appeal is without merit. 

24.The applicant provides no reasonably arguable grounds for judicial review, let alone reasonably arguable grounds to appeal the decision to refuse his application for leave to apply for judicial review of the decisions of the Director and the Board.  In fact, he provides no grounds at all, nor any particulars as to the relevance or application of the legal propositions that are stated in the skeleton submission to his claim.  

25.The applicant’s oral submissions at the hearing, further subtracted from his appeal and the basis of his non-refoulement claim.

26.An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced and rejected by the judge.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that the Judge made errors of law, or failed to take account of relevant matters placed before the court, or was otherwise plainly wrong: United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

27.For the reasons we have given, the appeal is dismissed.

The applicant appeared in person