RE DHAUNCHAK GURMEL SINGH

CACV 628/2020

[2021] HKCA 1301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 628 OF 2020

(ON APPEAL FROM HCAL NO. 231 OF 2019)

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D E C I S I O N

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

I.Leave to appeal to Court of Final Appeal

1.  On 10 June 2021, this Court (Cheung JA and B Chu J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge C P Pang given on 18 November 2020 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment.  We will not repeat them here.

3.  The applicant now applies, by a notice of motion filed out of time on 16 July 2021, for extension of time for leave to appeal against our judgment to the Court of Final Appeal.  He was eight days late.  The applicant stated in his notice of motion that, as far as we can understand from his handwriting, he was not satisfied with our judgment and he wanted justice.

4.  In the applicant’s supporting affirmation, he made a bare allegation that he did not ‘get the judgment’ without any details or explanation of how that was so.

5.  The applicant in his written submissions recited various factual background of his case.  He then stated that he did not get justice.

II.      Legal principles

6.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘the Ordinance’) (Cap. 484), an application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) of the Ordinance further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

7.  Section 22(1)(b) of the Ordinance 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, 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.

8.  In the present application, the applicant was eight days late.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena[2019] HKCA 959 at [1.4]).

III.     Our view

9.  No merits are shown in the applicant’s intended application. The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance. Nor is there any such question apparent to us from the matters he has raised in his notice of motion. 

10.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b) of the Ordinance.

IV.     Disposition

11.  For these reasons, we decline to grant an extension of time to the applicant to file an application for leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 16 July 2021.

CACV 628/2020

[2021] HKCA 828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 628 OF 2020

(ON APPEAL FROM HCAL NO. 231 OF 2019)

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J U D G M E N T

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge C P Pang in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1  The applicant is a national of India. He was arrested by the Police on 8 May 2016.  He claimed to have entered Hong Kong via Shenzhen on 29 April 2016.  Earlier on 28 April 2016 he arrived from the Mainland but was refused landing and repatriated to the Mainland.  He lodged a non‑refoulement claim.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by a drug dealer because the applicant reported him to the Police and if refouled the applicant is afraid that the drug dealer may come for him.

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 14 September 2017. The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’) as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 20 September 2017.  After a hearing held on 19 November 2018, the applicant’s claim was dismissed by the Board on 16 January 2019.

4.2  The Board held that the applicant’s evidence during the Board hearing was very inconsistent with his previous claims.  He first stated his cousin Sonu was a drug addict who was very close to him was dead.  He then later stated to the Board that this close cousin’s name was not Sonu but Kalwinder.  There were other claims made by the applicant which made little sense before the Board.  The Board held that the problem with the applicant’s claim was not so much that they were vague or lacking in detail, but that the details he provided about them have differed substantially on each telling, and that the inconsistencies undermine the entire narrative of his claim.

5)  Decision of the Judge

5.1  The applicant filed his Form 86, seeking for leave for judicial review on 24 January 2019.  In his supporting affirmation, the applicant’s main complaints were that his English ability was limited but he received no legal representation or language assistance for his appeal to the Board.  The bundle had never been read back to him.  The decision of the Board was never read or translated back to him.  The Board should provide adequate reasons for its decision.

5.2  On 18 November 2020, the Judge held that he would not interfere with the findings of the Board unless there is a public law ground to do so.  He held that high standards of fairness do not demand interpretation or legal representation at all stages of the legal proceedings.  The applicant should have had legal representation at first tier screening.  The hearing bundle consisted of documents that the applicant was well familiar with, and there was unlikely to be prejudice despite there being lack of translation.  The applicant did not seek for translation services at the relevant time but only raised this issue before the Judge.  If the papers before the Judge were in English, the applicant must have assistance from someone who prepared the documents for him.  There was no prospect of success in the applicant’s claim.   

6)  Grounds of appeal

6.1  In the applicant’s notice of appeal, he stated that the Judge failed to show good reasons and he did not consider the applicant’s points.

6.2  In his written submission, the applicant repeated the background of his case.  He stated that the High Court rejected his claim and he wished the Court of Appeal to grant him leave.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39]. 

7.2  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3  We see no basis to disturb the Deputy Judge’s Decision.  Accordingly, the appeal is dismissed.