Case Detail

CACV 272/2020

[2021] HKCA 258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2020

(ON APPEAL FROM HCAL NO 461 OF 2018)

________________________

BETWEEN
	Amandip Singh	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

________________________

Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 3 February 2021

Date of Judgment: 8 March 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Au JA) handed down on 8 January 2021 ([2021] HKCA 16). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge Bruno Chan on 9 July 2020 ([2020] HKCFI 1434) dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 January 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 3 February 2021. Having considered his submissions, we consider it appropriate to determine this application on paper and will proceed accordingly.

3. The applicant is a national of India and of 30 years old. He came to Hong Kong as a visitor on 28 November 2013. He subsequently overstayed and surrendered to the Immigration Department on 21 January 2014. He lodged a non-refoulement claim which was received by the Immigration Department on 12 March 2014. His claim was made on the basis that he would be harmed or killed by his paternal uncle for causing serious injuries to his uncle’s son during a fight.

4. His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 27 June 2017. His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 7 March 2018.

5. He filed a Form 86 on 20 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. His application was refused by DHCJ Bruno Chan on 9 July 2020.

6. On 17 July 2020, the applicant filed a notice of appeal against the decision of DHCJ Bruno Chan. The hearing of his appeal scheduled on 5 January 2021 was vacated as he failed to lodge skeleton argument pursuant to the directions of the Registrar of Civil Appeals. His appeal was dealt with on paper and dismissed by the Court of Appeal on 8 January 2021. The applicant filed a Notice of Motion on 20 January 2021 for leave to appeal to the Court of Final Appeal.

7. The applicant stated the following as his grounds of appeal in the Notice of Motion:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just reliedon COL^{^[1]} [sic] Information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefersto ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approachunlikely fairly access the danger of my life and clearly not reasonable.”

8. His contentions in his written submissions may be summarized as follows:

(1) high standards of fairness are required in the determination of a torture claim on the part of the decision maker and the decision maker is under a duty to act fairly;
(2) the Board erred in approaching the matter by simply trying to see whether he could find fault with the Director’s decision but failed to consider matters such as the country conditions of the applicant’s country of origin.

9. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal , from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10. The applicant’s grounds are just bare assertions without particulars and evidence in support. He has not demonstrated that the Court of Appeal was wrong in rejecting his appeal. He has also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11. We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion filed on 20 January 2021.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] This would appear to be a reference to “COI”, namely, Country of Origin Information.

CACV 272 /2020

[2021] HKCA 16

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2020

(ON APPEAL FROM HCAL NO 461 OF 2018)

________________________

BETWEEN
	Amandip Singh	Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

________________________

Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Judgment: 8 January 2021

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 9 July 2020^{^[1]}. By his decision, the judge refused to grant leave to the applicant to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. This appeal is dealt with on paper because of the failure of the applicant to lodge a skeleton argument as directed by the Registrar of Civil Appeals as mentioned below.

2. The applicant is a national of India. He is 32 years old. He came to Hong Kong as a visitor on 28 November 2013. He later overstayed and surrendered to the Immigration Department on 21 January 2014. He lodged a non-refoulement claim which was received by the Immigration Department on 12 March 2014. His claim was made on the basis that he would be harmed or killed by his paternal uncle for causing serious injuries to his uncle’s son during a fight.

The Director’s decision

3. By a Notice of Decision dated 27 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^{^[2]}, BOR 2 risk^{^[3]}, BOR 3 risk^{^[4]} and persecution risk^{^[5]}.

4. The Director considered that the past ill-treatment inflicted upon the applicant did not attain the requisite minimum level of severity and that his uncle did not have a genuine intention to harm or kill him. The Director further assessed that the risk of harm is small if the applicant is returned to India if he relocates to a place other than his own village. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

5. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 29 November 2017. The Board concluded that there were serious credibility problems and considered that there is no real risk that the applicant will experience any harm if he returns to India. Thus, the Board held that the applicant is not qualified for non‑refoulement protection and rejected the appeal on 7 March 2018.

The intended judicial review

6. The applicant filed a Form 86 and an affirmation on 20 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.

7. His grounds for his intended judicial review are that the decisions of the Director and the Board are incorrect and they have failed to consider the realities in India.

The judge’s decision

8. The judge held that there is no procedural unfairness or error of law in the process of the applications before the Director or the Board and in their decisions, or any failure on their part to apply high standards of fairness in their assessment of the claim. As the applicant does not have a reasonable prospect of success in his intended judicial review, the judge dismissed the leave application on 9 July 2020.

Grounds of appeal

9. The applicant stated the following grounds of appeal in the notice of appeal:

(1) He will face hardship if he is to return to his home country.
(2) The Board has significantly relied on the source of news which is not officially recognized or is simply hearsay. It has also relied on some cases which are outdated. The lack of credible source of information has resulted in the making of groundless speculations.

Non-compliance with order for lodging of skeleton argument

10. Directions were given by the Registrar of Civil Appeals on 21 October 2020 for the applicant to lodge a skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.

11. A notice of hearing dated 12 November 2020 informing the applicant that the appeal was scheduled to be heard on 5 January 2021 was sent to his address by registered post. The notice was unclaimed and returned to the court. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the litigant (ReHasmiRizwan Imran[2018] HKCA 439 at §15).

12. The appeal was scheduled to be heard on 5 January 2021. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 8 December 2020. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the applicant that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal by letter dated 9 December 2020. This letter and the earlier letter conveying the Registrar of Civil Appeals’ directions of 21 October 2020 were sent to the applicant by ordinary post . They have not been returned by the Post Office.

Legal Principles

13. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

14. 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 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 the decision of the Board.

15. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

16. The applicant’s grounds of appeal are bare assertions without any elaboration, particulars or evidence in support. In particular, he failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

17. There is no merit in the appeal and no realistic prospect of success in the intended application for judicial review. We therefore dismiss the appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The Applicant (Appellant), acting in person

[1] [2020] HKCFI 1434

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] 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).

[5] 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.

AMANDIP SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

Related cases with same parties

Files (2)