Re Sathaiah Subbaiah

CACV 200/2021

[2021] HKCA 1570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2021

(ON APPEAL FROM HCAL NO. 1242 OF 2018)

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Before:  Hon Cheung and G Lam JJA in Court

Date of Judgment:  25 October 2021

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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 Bruno Chan 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 22 April 2021.

2.Pursuant to the directions of the Registrar of Civil Appeals on 9 June 2021, the applicant was required to provide written submissions to the Court by 23 June 2021.  The applicant has failed to do so, and pursuant to paragraph 7 of the same directions, the applicant is now deemed to have abandoned his right to rely on written submissions, and his notice of appeal will be dealt with on paper.

II.   Background

3.The applicant is a national of India.  He arrived in Hong Kong as a visitor but he overstayed.  He then raised a non-refoulement claim on 19 November 2014 on the basis that if he returned to India he would be harmed or killed by another rival political party as they had killed his brother, perpetuated riots, attacked him, or caused damage to his house.

4.The details of the applicant’s claim have been summarized by the Deputy Judge at [2]-[4] of the CALL-1 Form.

III.   The Director’s Decision

5.The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 31 July 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

6.The applicant appealed against the Director’s Decision to the Board on 8 August 2017.  After a hearing held on 8 March 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 22 June 2018.

7.The Board found that there was no credible evidence and linkage between the applicant’s brother’s death and any threat to the applicant in the future.  There were inconsistencies in answers between the applicant’s non-refoulement claim form, his answers in his interview, and his oral evidence.  During the alleged riots, the applicant was not harmed in any way, and even though the applicant’s house was damaged by the rioters, the applicant was not himself harmed.  The applicant was not specifically targeted.

V.   Decision of the Judge

8.The applicant filed a Form 86 with a supporting affirmation.  No grounds of relief were set out in his Form 86.  In his supporting affirmation, he merely repeated that he cannot go back to his home country as his life was still in danger.

9.The Deputy Judge on 22 April 2021 held that the applicant did not put forward grounds for challenge, nor did he request any oral hearing.  There was no error of law or procedural unfairness that could be found.    

VI.   Grounds of appeal

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

‘ I cant go back to my country at this moment because my life is not save there. Please help me to stay in Hong Kong. So…I can save my life.’

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

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.

The applicant, unrepresented, acting in person