Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Re Sk Sarfaraj

Judgment Cited in 59 Precedent Map Related
Vincent
Judgment Date29 May 2018
Neutral Citation[2018] HKCA 307
Year2018
Judgement NumberCACV64/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV64/2018 RE SK SARFARAJ

CACV 64/2018

[2018] HKCA 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 64 OF 2018

(ON APPEAL FROM HCAL 467 OF 2017)

------------------------------

RE: SK SARFARAJ Applicant

------------------------------

Before: Hon Chu JA and Barma JA in Court
Date of Handing Down Judgment: 29 May 2018

___________________

J U D G M E N T

___________________

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

1. This is an appeal against the decision of Deputy High Court Judge Woodcock on 13 March 2018 refusing leave to the applicant to apply for judicial review. The applicant is an Indian national. He entered Hong Kong on 4 June 2014. He overstayed and surrendered to the police on 21 June 2014. On 23 June 2014, he lodged a claim for non-refoulement protection. His claim is based on a threat from a Hindu group. According to the applicant, he was beaten and threatened by a group of Hindus because he refused to convert to Hinduism.

2. The Director decided against the claims on 28 June 2016. The decision covered BOR 3 risk, persecution risk and torture risk (“Director Decision”). By a Further Decision of 3 March 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3. The applicant appealed to the Torture Claims Appeal Board. After a hearing held on 16 May 2017, the Board dismissed the appeals on 7 July 2017 (“Board Decision”).

4. The intended judicial review was in respect of the Board Decision only. The Form 86 filed by the applicant on 28 July 2017 did not state any ground for judicial review.

5. In his affirmation of 28 July 2017, she gave the following grounds for judicial review:

(1) The Board failed to carry out sufficient research into the Country of Origin Information (COI).

(2) The Board cherry-picked COI information.

(3) The Board failed to evaluate and make a finding of fact as to the existence in India a consistent pattern of gross, flagrant or mass violation of human rights.

(4) The Board failed to assess whether state protection existed and misdirected itself as to the meaning of state protection.

(5) The Board took into account irrelevant consideration and the Board Decision was unreasonable.

(6) Failure to call for psychological and psychiatric evaluation and reports at the screening stage and in the appeal to the Board.

(7) The Board applied the incorrect standard of proof.

(8) Failures at first instance by the assigned duty lawyer resulted in a lack of legal representation.

6. The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [16] to [22] of the CALL-1 Form of 13 March 2018:

“16. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

17. This application lists eight grounds of judicial review. Many involve the adjudicator’s failure concerning COI material and information. Those include grounds 1, 2 and 5. Ground 3 criticises the adjudicator for failing to consider human rights violations and Ground 4 criticises him for failing to consider whether State protection exists in India. Firstly, particulars have not been given in relation to each of these grounds and complaints. Secondly, the adjudicator has made little reference to COI material; referring only to material from the applicant. Having found no evidence, the applicant would be personally at risk if refouled and making the specific finding the applicant was not a genuine credible claimant, there was no need for the adjudicator to consider human rights violations and State protection in [India] in any depth.

18. Grounds 6, 7 and 8 also lack particulars. There was never any basis for the adjudicator to call for psychological and psychiatric evaluation. There were no complaints by the applicant nor any particulars given to the adjudicator that the assigned duty lawyer failed him previously. In fact, during the oral hearing the applicant confirmed to this court that he had no complaints against the duty lawyer; he said that the lawyer did a good job. None of the above grounds have any merit.

19. There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle. He says he was ill-prepared and confused during the hearing. During the oral hearing the applicant said to this court that he did raise this with the adjudicator but the adjudicator did nothing. However, it then transpired that his confusion was...

To continue reading

Request your trial
59 cases
  • Re Shrestha Santosh Kumar
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 6 Septiembre 2018
    ...to an oral hearing: see Re Majit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; Re SK Sarfaraj [2018] HKCA 307; and Re Gurjant Singh [2018] HKCA 467. 6. Accordingly, the hearing date was vacated. The applicant was further informed of the vacation of t......
  • Re Maninder Singh
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 31 Octubre 2018
    ...Kaur [2018] HKCA 247, para 10; Re Miha Md Limon [2018] HKCA 278, para 12; Re Ali Arshad [2018] HKCA 304, para 10; and Re Sk Sarfaraj [2018] HKCA 307, para 3. On 27 August 2018, the hearing of this appeal was fixed for 12 October 2018. When the hearing date was fixed, the applicant was remin......
  • Re Ashwani Kumar
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 18 Octubre 2018
    ...by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307. Background 3. The applicant is a national of India. He came to Hong Kong from the Mainland China on 30 June 2014 illegally and was arrested......
  • Re Sellaiah Murugesan
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 20 Noviembre 2020
    ...Kumara [2018] HKCA 400; Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; Re SK Sarfaraj [2018] HKCA 307; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 8. Adequate time was given to the Applicant under the unless order for him t......
    • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT