Case Detail

CACV 174/2021

[2022] HKCA 1430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 174 OF 2021

(ON APPEAL FROM HCAL NO 3006 OF 2018)

_______________________

RE:

Harpal Singh

Applicant

_______________________

Before: Hon Yuen and Chu JJA in Court

Date of Written Submissions: 12 May 2022

Date of Judgment: 30 September 2022

________________________

J U D G M E N T

________________________

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

1. This court handed down judgment on 18 March 2022 ([2022] HKCA 397) dismissing the applicant’s appeal against an order of DHCJ P Li (“the Judge”) given on 7 April 2021 refusing to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim (“the Judge’sDecision”).

2. On 16 April 2021, the applicant had filed a Notice of Appeal to appeal against the Judge’s Decision. As mentioned earlier, in our judgment of 18 March 2022, we dismissed the applicant’s appeal. The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3. On 29 April 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as s.24(2) of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from. The last day for filing the Notice of Motion expired on 19 April 2022.

4. However, under s.24(5) and s.24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5. In the present case, the applicant was late by 10 days in filing his Notice of Motion which is not insignificant. He did not explain his delay in his Notice of Motion or supporting affirmation.

6. Moreover, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal. He advanced the following in the Notice of Motion:

“1. The learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration on 7^th April 2021 refusing my application for judicial review.
2. The learned judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director was required to give reason justifying the decision.”

7. In compliance with the directions of the Registrar of Civil Appeals made on 29 April 2022, the applicant lodged his written submissions in support of the Notice of Motion on 12 May 2022. This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8. In his written submissions, the applicant simply quoted passages from ST v Director of Immigration[1][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness. He submitted that high standards of fairness applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. The written submission further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge. However, he did not explain how those legal authorities and provisions would apply to or assist his case.

9. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted 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.

10. The applicant’s intended appeal has no merit at all as it does not engage with the judgment of this court. The grounds as set out in the Notice of Motion are vague and general. No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

11. Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

12. By reason of the above, the Notice of Motion filed on 29 April 2022 is dismissed.

(Maria Yuen)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The applicant, unrepresented, acting in person

[1] The correct citation should be ST v Betty Kwan.

CACV 174/2021

[2022] HKCA 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 174 OF 2021

(ON APPEAL FROM HCAL NO 3006 OF 2018)

_____________________

BETWEEN
	Harpal Singh	Applicant
and
	Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office	Putative Respondent
and
	Director of Immigration	Putative Interested Party

__________________

Before: Hon Yuen and Chu JJA in Court

Date of Judgment: 18 March 2022

___________________

J U D G M E N T

___________________

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

Introduction

1. On 7 April 2021, DHCJ P. Li (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 7 December 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 20 March 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds other than torture which had been disposed of on 15 September 2010.

2. On 16 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.

3. Pursuant to the directions of Registrar of Civil Appeals made on 26 May 2021, the applicant should lodge his written submissions on or before 9 June 2021. He failed to do so. The Registrar further directed that in the event the applicant failed to lodge his written submissions by that date, he will be deemed to have abandoned his right to rely on written submissions.

4. As it is appropriate to do so, we proceeded to consider the appeal on paper based on the available documents and materials.

Background

5. The applicant is a national of India. He arrived at Hong Kong as a visitor on 8 November 2009. He did not depart and overstayed since 23 November 2009. On 16 November 2009, he lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was refused by the Director on 15 September 2010. On 2 October 2013, he lodged his non-refoulement claim on the basis that if refouled, he will be harmed or even killed by the people from the Shriomani Akali Dal (“SAD”) due to a land dispute. The factual background of this case was succinctly summarized by the Judge in [3] – [12] of the Form CALL-1 ([2021] HKCFI 878).

6. By a Notice of Decision dated 20 March 2017, the Director assessed the applicant’s claim on BOR 2 risk[1], BOR 3 risk[2] and persecution risk[3], and determined it against him.

7. The applicant appealed the Director’s decision to the Board. He attended an oral hearing on 22 and 24 October 2018. By its decision dated 7 December 2018, the Board dismissed the appeal. For the reasons set out in [53] to [100] of the Board’s decision, the Board did not accept the applicant was a truthful witness due to inconsistencies within his own evidence, in particular, the applicant’s claim that his father was involved in a rival political group that supported the idea of independence for Punjab, and that due to his father’s political role, he was harassed, harmed and forced to sell his land to SAD which formed the core of his case. The Board noted inconsistencies such as his claim that his father had disappeared between 1984 to 1993, and yet he was born during this period. The Board concluded that he would not face a real risk of harm from SAD upon his return. For the aforesaid reasons, his non-refoulement claim failed on all applicable grounds.

Decision of the court below

8. On 28 December 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions. In his supporting affirmation, he only complained that the Board’s decision was unfair and unreasonable.

9. The applicant did not request for an oral hearing and the Judge disposed of the application on paper. By his decision made on 7 April 2021, the Judge refused to grant him leave to apply for judicial review and the reasons for the refusal were set out at [21] – [24] of the Form CALL-1 as follows:

“21. In judicial review, the task of this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
22. The applicant had not pointed out any error in the decision of the TCAB. In my view, the adjudicator had fairly conducted the oral hearings. The applicant was given a fair chance to clarify some aspects of his claim as he wished. It was his election not to give evidence on other details.
23. The analysis by the adjudicator was thorough and correct. I agree with her that there were fundamental inconsistencies in the applicant’s evidence. He was not truthful.
24. In my judgment, there is no error of law or procedure. The decisions are reasonable.”

Appeal to this Court

10. On 16 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision in which he complained that the Judge’s decision is unfair and unreasonable, his points were overlooked and fair assessment was not done.

Legal principles

11. In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11]. For the purposes of this appeal, the salient principles are as follows:

(1) 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 on appeal, which operates as a re-hearing, 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 COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board. 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.
(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.
(3) 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. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

Discussion

12. The applicant’s complaint that the Judge’s decision was unfair and unreasonable is a vague and general assertion without particulars and elaboration, and is not a valid ground of appeal.

13. As repeatedly emphasised by this Court, and as rightly explained by the Judge in his decision, the court would only intervene if there is error in law or procedure or if the decision is irrational, and the court would not assume the role of the Board to reconsider the facts or to reassess the evidence. We agree with the Judge that the Board had fairly assessed the applicant’s case and its analysis was thorough and correct and there is no basis for intervention.

14. Having considered the materials before us, we are of the view that the Judge’s observations are fully justified. We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

15. For the above reasons, this appeal is dismissed.

(Maria Yuen)
Justice of Appeal

(Carlye Chu)
Justice of Appeal

The applicant, unrepresented, appeared in person

[1] 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).

[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.

RE HARPAL SINGH

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