CACV 186/2020
[2021] HKCA 950
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 186 OF 2020
(ON APPEAL FROM HCAL 1034/2017)
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| RE: | PREETPAL SINGH | Applicant |
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Before: Hon Barma JA and Linda Chan J in Court
Date of Hearing: 22 June 2021
Date of Judgment: 13 July 2021
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Campbell-Moffat J given on 5 June 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 1 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 4 August 2016 and 29 June 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of India. He entered Hong Kong on 1 October 2015 purportedly as a hockey player intending to participate in matches in Hong Kong and was permitted to remain until 15 October 2015. He overstayed and surrendered to the authorities on 9 December 2015. He lodged a non-refoulement claim on 23 February 2016.
3. The applicant claimed to have been involved in a traffic accident in which two people were killed. He fled from India to avoid being harmed by the families of those who died in the traffic accident. The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.
4. By a Notice of Decision dated 4 August 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim. The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2] and the torture risk[3].
5. By a Notice of Further Decision dated 29 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.
6. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 17 November 2017, the Board dismissed the appeal on 1 December 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.
7. At [22] of the Board’s Decision, the Board found that the applicant was not truthful. The Board was also satisfied at [27] that state protection would be available for the applicant and at [43] that internal relocation would be viable.
The judge’s decision
8. The applicant filed a Form 86 on 7 December 2017 which contained no ground for seeking relief.
9. In his affirmation in support of the leave application filed on 7 December 2017, the applicant deposed:
“…[the Board’s Decision] was unfair and unreasonable.”
10. The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.
11. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [10] of the CALL-1 Form:
“9. In his affirmation in support of this application, the applicant maintains that the decision of the Adjudicator was unfair and unreasonable. There were no grounds provided in support of that claim. I note that the Form 86 was completed in the same hand as many which are submitted to this court with exactly the same claim. This applicant has not complained of any specific procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
10. Despite the fact that the applicant did not submit any proper grounds of review, I have considered the papers and two general grounds carefully. Given the admissions by the applicant as to how and why he came to Hong Kong as well as the reasons given for his claim, he clearly presented no proper basis for a claim under any head. As to the manner in which he was dealt with, I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.”
Grounds for appeal
12. In the Notice of Appeal filed on 15 June 2020, the applicant stated that:
“The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in the Applicant’s case. This has indeed led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.
The Applicant submits that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.
The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that the applicant has failed to advice any credible evidence to prove material elements of his claim.
It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal, and that to when he is in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.
Surprisingly, the director in his Decision while referring to relevant COIs. kept including meaning which suited his pre-conceived conclusion. This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void.”
13. In his skeleton submissions lodged on 3 May 2021, the applicant referred to a number of authorities on high standard of fairness and Wednesbury unreasonableness without explaining their relevance. He also referred to section 37ZT of the Immigration Ordinance, Cap 115 related to late filing of notice of appeal to the Board, again without explaining its relevance.
14. The applicant agreed by a letter of 15 June 2020 that the appeal could be heard by two judges. We heard the appeal on 22 June 2021.
Discussion
15. Most of the grounds of appeal (other than the second ground) are not related to any alleged error on the part of the judge. They are therefore not viable grounds of appeal. As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.
16. As for the second ground, which is based on the failure by the judge to give sufficient weight to the issue of state acquiescence, we note that this ground was never raised before the judge and the judge was therefore not required to deal with it. This ground is therefore also without merit.
17. As for the grounds raised in the skeleton submission, they are vague and lack particulars. They also do not engage with the judge’s reasoning in refusing leave for judicial review at all. These grounds are also without merit.
18. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) | (Linda Chan) |
| Justice of Appeal | Judge of the Court of
First Instance |
The applicant appeared in person
[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.