Case Detail

CAMP 64/2020

[2020] HKCA 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 64 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1711 OF 2018)

________________________

BETWEEN
	Jagg 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 Barma JA in Court

Date of Written Submission: 16 November 2020

Date of Judgment: 27 November 2020

____________________

J U D G M E N T

____________________

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

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 23 October 2020 ([2020] HKCA 844) refusing to grant leave to appeal out of time against the judge’s decision dismissing his application for leave to apply for judicial review concerning his non‑refoulement claim. The applicant is a national of India. His claim was made on the basis that he would be harmed or killed by a supporter of the Congress Party called Jageera. He filed his Notice of Motion on 6 November 2020.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 9 November 2020 that the notice of motion shall be determined on paper only without an oral hearing. The applicant lodged a written submission on 16 November 2020. Having considered the papers, we think it is appropriate to determine this application on paper and will proceed to do so.

3. The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of Deputy High Court Judge K W Lung. His application was late by one week. His application was refused by the judge on 19 June 2020 ^{^[1]}. The applicant renewed his application to the Court of Appeal for extension of time to appeal on 26 June 2020.

4. On 23 October 2020, the Court of Appeal refused to extend time to appeal against the decision of DHCJ K W Lung because the applicant does not have any prospect of success in the intended appeal.

5. In the Notice of Motion filed on 6 November 2020, the applicant set out his grounds of appeal as follows:

(1) The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration by which the Director and the Adjudicator of the Torture Claims Appeal Board are required to give reasons justifying their decisions.
(2) The judges were wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director and the Adjudicator.
(3) The decisions were not reasonable and fair. The right to life is protected under article 28 of the Basic Law and it must be protected from extra-judicial killings that he may face if he is deported back to his country.
(4) The judges did not apply the law properly.

6. Under Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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.

7. The applicant has not shown any merits in his intended appeal as his grounds of appeal are not supported by evidence. In particular, he has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application. 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).

8. For the above reasons, we dismiss the Notice of Motion filed on 6 November 2020 for leave to appeal to the Court of Final Appeal.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

(Aarif Barma)
Justice of Appeal

The Applicant, acting in person

[1] [2020] HKCFI 1173

CAMP 64/2020

[2020] HKCA 844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 64 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1711 OF 2018)

________________________

BETWEEN
	Jagg 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 and Cheung JA in Court

Date of Written Submission: 17 August 2020

Date of Judgment: 23 October 2020

____________________

J U D G M E N T

____________________

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

1. On 6 September 2019, Deputy High Court Judge K W Lung refused the applicant’s application for leave to seek judicial review of the decisions of the Torture Claims Appeal Board (“the Board”) and the Director of Immigration (“the Director”) concerning his non‑refoulement protection claim^{^[1]}.

2. On 19 June 2020, the judge refused to grant leave to the applicant to appeal against his said decision out of time as he considered that the applicant was unable to show that he had a reasonable prospect of success in his intended appeal^{^[2]}.

3. On 26 June 2020, the applicant took out a renewed application to the Court of Appeal seeking leave to appeal against the judge’s decision on 6 September 2019 out of time.

4. The applicant is an Indian national of 26 years old. He entered Hong Kong illegally on 11 December 2014 and was arrested by the police on 10 February 2015. He lodged a non-refoulement claim on 13 February 2015. He claimed that he would be harmed or killed by a supporter of the Congress Party called Jageera.

The Director’s decision

5. By a Notice of Decision dated 28 August 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk^{^[3]}, BOR 3 risk^{^[4]}, torture risk^{^[5]} and persecution risk^{^[6]}.

The Board’s decision

6. The applicant appealed against the Director’s decision to the Board. The Board conducted a hearing on 11 May 2018. The Board considered that the problems the applicant faced arose out of a private matter and there was no evidence to suggest that Jageera acted in the capacity of state actor. The Board also observed a number of inconsistencies and contradictions in the applicant’s evidence and found that the applicant was not able to make out his claims. Therefore, the appeal was dismissed by the Board on 17 August 2018.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 22 August 2018 in HCAL 1711/2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. He put forward the following grounds for his intended challenge:

(1)  the decisions were unfair and unreasonable;
(2)  the Director did not properly consider state acquiescence;
(3)  the Director did not consider or had failed to give enough weight to the applicant’s argument;
(4)  the Director did not give enough weight to the Country of Origin Information in the applicant’s favour; and
(5)  the Director failed to maintain high standard of fairness.

The judge’s decision

8. The leave application was heard before DHCJ Lung on 28 February 2019. The judge dismissed the application on 6 September 2019 as he considered that the applicant has no reasonable prospect of success in his proposed judicial review for the following reasons:

(1) It was confirmed by the Court of Appeal in Re Moshsin Ali^{^[7]} that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the Board is pursued by a claimant as the decision of the Director will be superseded by the decision of the Board.
(2) The applicant confirmed that he had no complaint against the adjudicator and as the Board had rejected all his evidence he has no factual basis in support of his claim.

The grounds of appeal

9. In the applicant’s written submissions, he stressed that high standards of fairness are required in the determination of a torture claim^{^[8]} and submitted that the adjudicator had acted in a procedurally unfair manner without properly assessing his credibility^{^[9]}.

Analysis

10. The applicant’s applications below and before us are simply applications for extension of time to appeal. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11. Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 6 September 2019. The applicant took out summons in the court below on 27 September 2019. He was late by one week.

12. At the hearing at the court below on 4 December 2019, he explained that he did not receive the judge’s decision of 6 September 2019 as he was detained by the Immigration Department^{^[10]}. Given the short delay in the present case, the applicant’s explanation may be considered as acceptable. The court would still assess whether the applicant can show there is reasonable prospect of success in the intended judicial review, which is the crucial consideration in this application^{^[11]}.

13. In assessing the merit of the intended appeal, the court would adopt the legal principles which 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. Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation is 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 an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16. The applicant alleged that the adjudicator acted in a procedurally unfair manner without properly assessing his credibility^{^[12]}. This ground was not raised in his previous leave application. The Court of Appeal would not entertain such new ground as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds had failed in the court below^{^[13]}.

17. In any event, his criticism is contrary to the fact that the adjudicator had set out in detail the behaviour detrimental to the applicant’s credibility as well as the inconsistencies and contradictions in the applicant’s evidence^{^[14]}.

18. Furthermore, the applicant failed to put forward any viable ground to reverse the judge’s decision. 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.

19. For the above reasons, the applicant does not have any prospect of success in the intended appeal. We therefore dismiss the summons filed on 26 June 2020 for leave to appeal against the judge’s decision out of time.

(Susan Kwan)	(Peter Cheung)
Vice President	Justice of Appeal

The Applicant, acting in person

[1] [2019] HKCFI 2224

[2] [2020] HKCFI 1173

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

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

[6] 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.

[7] [2018] HKCA 549, CACV54/2018, at §45

[8] §§(1) to (4) of the submissions, this ground was raised in the Form 86.

[9] §(5) of the submissions, this ground was not raised in the previous leave application in HCAL 1711/2018.

[10] Record of hearing in HCAL 1711/2018 on 4.12.2019 & [2020] HKCFI 1173 §6

[11] Re Gurung Min Bahadur[2018] HKCA 226 §10

[12] §(5) written submissions.

[13] Re Qadir Sher[2018] HKCA 160 §11

[14] §§22 to 27 & 38 to 43 of the decision of the Board

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

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