Re Ravinder Singh

CACV 251/2022

[2023] HKCA 341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 251 OF 2022

(ON APPEAL FROM HCAL NO. 2679 OF 2018)

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JUDGMENT

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

I.  The appeal

1.This is an appeal against the decision (the ‘Decision’) of Deputy High Court Judge Bruno Chan (the ‘Judge’) of 17 June 2022 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 23 November 2018, which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’) dated 27 September 2017 rejecting his claim for non‑refoulement protection.

2.The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.The applicant is a national of India.  He entered Hong Kong illegally on 31 October 2014 and surrendered to the Immigration Department on 16 April 2015. He raised a non - refoulement claim on the basis that if he returned to India he would be harmed or killed by his former girlfriend’s family who objected to their relationship.

4.The background facts have been summarised by the Judge at [1] to [7] of the Decision.

III.  The Director’s Decision

5.The Director’s 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 (the ‘Director’s Decision’).

IV.  The Board’s Decision

6.After a hearing held on 26 July 2018, the Board dismissed the applicant’s appeal (the ‘Board’s Decision’).

7.The Board found inconsistencies and implausibility in the applicant’s evidence and doubted the credibility of the applicant’s claim of fear of harm from his former girlfriend’s family.  The Board was not satisfied that the applicant faced a real risk of harm if the applicant is returned to India.

V.  Decision of the Judge

8.The applicant filed a Form 86 and a supporting affirmation on 26 November 2018, but did not identify any ground for seeking relief in either document.

9.An oral hearing was held before the Judge on 3 May 2022.  The applicant confirmed that he had nothing to add to his Form 86 and supporting affirmation.

10.Given the applicant’s failure to identify any error of law or irrationality or procedural unfairness in the proceedings before the Board or the Board’s Decision, the Judge did not find any reasonably arguable basis for the intended challenge.

11.The Judge further noticed that it has been established in the Director’s Decision that the risk of harm in the applicant’s claim, if true, is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India.  As such, there is simply no justification to afford the applicant with non - refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526.

12.The Judge was not satisfied that there was any real prospect of success in the applicant’s intended application for judicial review and accordingly refused his leave application.

VI.  Grounds of appeal

13.In the Notice of Appeal filed on 23 June 2022, the applicant claimed that he was ‘not satisfied with’ the Decision because it is ‘away from facts and reality which are related with my case’ and that there is no transparency in the Decision.

14.In the written submissions filed on 4 July 2022, the applicant made further vague complaints about ignorance of relevant facts and lack of transparency, without any particulars or elaborations.  He also made some vague and unsubstantiated assertions about ‘political influence’ and ‘corrupt environment’ in India.  It is unclear whether these are the matters which he says have been ignored.  In any event, the Director and the Board have considered and rejected similar allegations raised by the applicant before them.

VII.   Our view

15.In our view, the applicant’s submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing his application.

16.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 Country of Origin Information 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.

17.In our view, the applicant’s appeal is devoid of any merits.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person