Case Detail

CACV 471/2020

[2023] HKCA 432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 471 OF 2020

(ON APPEAL FROM HCAL NO 2878 of 2018)

________________________

BETWEEN

	GAUCHAN SUBASH	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before:

Hon Au JA, Yau and S T Poon JJ in Court

Date of Judgment:

13 April 2023

________________________

J U D G M E N T

________________________

Hon S T Poon J (giving the Judgment of the Court):

1. On 29 July 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Lam VP (as he then was), Yau and S T Poon JJ) judgment of 29 March 2021 (“the Judgment”) ([2021] HKCA 412). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) dated 6 August 2020, by which the Judge refused his application for leave to apply for judicial review ([2020] HKCFI 1870).

2. The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4. Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from. Thus, the deadline for filing the present application expired on 7 April 2022. The applicant was late for over 1 year and 3 months with his application for leave to appeal to the Court of Final Appeal.

5. As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad[2021] HKCA 482 at [9] and the authorities cited therein. In deciding whether there are such good grounds, the Court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the other party if the application is granted: Begum Jahanara v Ian Candy, Esq & Another[2021] HKCA 83 at [4] and the authorities cited therein.

6. In his Notice of Motion, the applicant stated:

“I would like to infomr the Honourable Court that there is some error of law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

7. In his supporting affirmation filed on 29 July 2022, the applicant stated:

“The plaintiff seek leave to file Notice of Motion out of time as the plaintiff did not receive the judgement within the time stipulated for appeal. The plaintiff now craves for leave that the Court be moved out of time.” (sic)

8. Pursuant to Practice Direction 2.1, the applicant lodged written submissions on 10 August 2022. In his written submissions, he cited ST v Betty Kwan [2014] 4 HKLRD 277[1]and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim. He submitted that the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) acted in a procedurally unfair manner without properly assessing his credibility. He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably. He also cited section 37ZT of the Immigration Ordinance, Cap 115 in relation to the late filing of notice of appeal to the Board but failed to demonstrate how it was relevant to his case. It is noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

9. At the outset, we consider the applicant’s delay of over 1 year and 3 months severely substantial. Although he alleged that he received the Judgment late, he did not provide any evidence or specific particulars in support of his contention. From the Court record, it is noted that the Judgment and the Court’s sealed order were sent to the applicant on 29 March 2021 to his last known address without being returned undelivered. Accordingly, there is no good reason for his excessive and inordinate delay.

10. More importantly, his intended appeal has no merit at all. The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. The applicant has also failed to identify any specific error in the Judgment with particulars. Clearly, his arguments do not constitute proper grounds of appeal.

11. Further, the matters raised in his Notice of Motion and written submissions mainly repeated those submissions he had previously made before this Court: see [8] to [9] of the Judgment. It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3]. His arguments had already been fully considered and rejected by this Court at [15] to [19] of the Judgment and the applicant has failed to identify with specific particulars any error in the Judgment. As such, none of those arguments as set out in the Notice of Motion can be construed as viable grounds of appeal to the Court of Final Appeal.

12. Even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

13. Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

14. For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal. Accordingly, the Notice of Motion filed on 29 July 2022 is dismissed.

(Thomas Au)	(Joseph Yau)	(S T Poon)
Justice of Appeal	Judge of the Court of First Instance	Judge of the Court of First Instance

The applicant, unrepresented, appearing in person.

[1] In his skeleton submissions, the applicant cited this case as ST v Director of Immigration[2014] 4 HKLRD 277.

CACV 471/2020

[2021] HKCA 412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 471 OF 2020

(ON APPEAL FROM HCAL NO 2878 of 2018)

________________________

BETWEEN

	GAUCHAN SUBASH	Applicant (Appellant)
	and
	TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE	Putative Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative Interested Party

________________________

Before: Hon Lam VP, Yau and S T Poon JJ in Court

Date of hearing: 22 March 2021

Date of Judgment: 29 March 2021

________________________

J U D G M E N T

________________________

Hon S T Poon J (giving the Judgment of the Court):

1. This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 6 August 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 3 December 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 18 April 2018 rejecting his non-refoulement claim.

2. The applicant is a Nepali national. He arrived in Hong Kong on 9 June 2015 and was permitted to remain as a visitor until 16 June 2015. He did not depart and has overstayed. On 23 June 2015, he surrendered himself to the Immigration Department. The applicant lodged a non-refoulement claim on 18 September 2015.

3. The applicant’s claim was based on the fear(s) that, if he returned to Nepal, he would be harmed or even killed by his father’s creditor and his men. The factual background was succinctly summarized by the Judge at [5] of the Form CALL-1[1].

4. By a notice of decision dated 18 April 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against them. The applicable grounds are BOR 3 risk[2], persecution risk[3], torture risk[4] and BOR 2 risk[5].

5. By its decision dated 3 December 2018, the Board dismissed the appeal having regard to all applicable grounds. Primarily, the Board considered that the applicant had never sustained any serious pain or suffering caused by his father’s creditor or his men. As such, the Board was not satisfied that there was any real risk of harm in the event of refoulement. Further, because the applicant never reported his father’s creditor’s threats and/or harms to the police (or other government authorities), there was no evidence that the police would not assist the applicant. Therefore, the Board considered that state protection was available. The Board also considered that internal relocation was viable, because the applicant had moved away from Kathmandu to Hetauda where he stayed for 2 months without encountering his father’s creditor and/or his people.

Application for leave to start judicial review

6. On 17 December 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision which contained no ground for seeking the relief.

The Judge’s Decision

7. 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 [12] to [16] of the Form CALL-1:

“12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
13.  In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13.… …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 the decision of the Board.’
14.  It seems clear that the Board accepted the facts of the applicant’s case, but considered that it was a private monetary dispute between his family and the creditor without any state involvement and he would have state protection and the option of internal relocation if he returned to Nepal.
15.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to Court of Appeal

8. By a Notice of Appeal filed on 14 September 2020, the applicant appealed against the refusal of leave for judicial review. His stated grounds of appeal are that he will face hardship if he were to return to his home country; that the Board relied on sources that are not officially recognized, hearsay or outdated; and that the lack of credible sources of information resulted in the Board making groundless speculations.

Written Submissions

9. Pursuant to the Court’s directions, the applicant lodged his written submissions on 18 January 2021. Those submissions consist of general statements of law quoted from case law without identifying how they relate to or apply in this case. The applicant did not provide any details or particulars in support of his grounds of appeal or as to any specific errors by the Board or the Judge.

Legal Principles

10. The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11. The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board. They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin.

12. When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision. The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here.

13. Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal. Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

14. We heard the appeal on 22 March 2021. At the hearing, the applicant had nothing further to say.

Discussion

15. As mentioned earlier, the applicant did not in his Notice of Appeal or written submissions provide any particulars in support of his grounds of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder[2019] HKCA 20; Re Aziz Nasir[2019] HKCA 578; Re Kharsu Numan[2019] HKCA 626; Re Salim Ahmed[2020] HKCA 244.

16. As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17. In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse findings as to the applicant’s credibility. Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.

18. Having considered the materials before us, we are of the view that the Judge’s observations are fully justified. The Judge has applied the relevant legal principles correctly. We cannot find any flaws in his analysis. The Judge is plainly right to refuse leave. There is no reasonably arguable ground to challenge the decision of the Judge.

19. For these reasons, this appeal is dismissed.

(M H Lam)	(Joseph Yau)	(S T Poon)
Vice President	Judge of the Court of First Instance	Judge of the Court of First Instance

The applicant, unrepresented, appearing in person.

[1] [2020] HKCFI 1870.

[2] 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).

[3] 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.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] [2018] HKCA 524.

[7] See cases cited in Nupur Mst, op cit, §14(2).

[8] [1954] 1 WLR 1489.

GAUCHAN SUBASH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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