Re Baljinder Kumar

CACV 92/2021

[2021] HKCA 1303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 92 OF 2021

(ON APPEAL FROM HCAL NO. 1227 OF 2018)

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Before:  Hon Cheung JA and Lisa Wong J in Court

Date of Judgment:  17 September 2021

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J U D G M E N T

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Hon Cheung JA (giving 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 1 March 2021.

II.  Background

2.The applicant is a national of India.  He last entered Hong Kong on 8 November 2014 as a visitor but he overstayed.  He then raised a non-refoulement claim on the basis that if he returned to India he would be harmed or killed by his uncle and his sons due to land disputes between the uncle and the applicant’s family.

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 28 March 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 13 March 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 27 June 2018.

6.The Board found that the applicant did not adduce support for many material aspects of his claim.  The true owners of the land in dispute were never disputed by the uncle.  The applicant demonstrated a very limited knowledge of the land in question.  The centerpiece of the applicant’s case did not stand up to scrutiny.  There was no actual bodily harm inflicted on the applicant on various incidents by the uncle.  There was no evidence to indicate the applicant’s enemies were in any way related to the state.  There was no reliable evidence that the applicant suffered physical or mental sufferings of requisite severity.  The applicant cannot show that any alleged persecution was related to a Convention reason.

V.  Decisions of the Judge

7.The applicant filed a Form 86 with a supporting affirmation.  The applicant stated that he could not return to his country because his life would be in danger and he asked to stay in Hong Kong until his problems are solved.

8.The Deputy Judge on 1 March 2021 held that the applicant has not set out any error made by the Board.  No evidence showed that the applicant had any reasonable chance of success.  

VI.  Our view

9.The applicant in his notice of appeal filed mainly emphasized on procedural unfairness.  The main complaint was that there was absence of legal and language assistance.  The law is clear that the applicant for non-refoulement does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18].  The applicant repeated in his written submission his complaint about the lack of language assistance.  For language assistance, high standards of fairness do not entail interpretation service to be available at any time as the applicant desired.  It is further noted that all court documents were written in English, indicating either that the applicant is familiar with English or that he had the means and access to such language assistance as needed.

10.In the applicant’s written submission, he stated that there was no finding of credibility in the Director’s Decision but there was such finding in the Board’s Decision.  The answer is that the hearing before the Board was a re-hearing and the Board was entitled and obliged to make findings in its decision.

11.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.

12.In our view there is no merit in the applicant’s appeal.  The Deputy Judge had provided his reasons of refusal in his decision.

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

Applicant, unrepresented, acting in person