RE CHATER SAINGH

CACV 18/2021

[2022] HKCA 337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2021

(ON AN APPEAL FROM HCAL NO. 1046 OF 2018)

__________________________

RE

CHATER SAINGH

Applicant

__________________________

Before:

Hon Cheung, Chu and M Poon JJA in Court

Date of Judgment:

4 March 2022

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  On 30 June 2021, this Court handed down our judgment ([2021] HKCA 917) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 11 January 2021 which refused to give him leave to apply for judicial review.     

2.  On 28 December 2021, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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 extend the time for the filing of the notice of motion.  In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.  

6.  The applicant’s notice of motion is late by about five months, which is a serious delay.  The applicant explained in his affirmation that he is serving a prison term and he did not receive the Judgment from the High Court.  We note from the court file that the judgment and the sealed court order were mailed to the applicant on 30 June 2021 at the address stated in the notice of appeal filed on 21 January 2021.  We also note from the notice of motion and the supporting affirmation that the applicant is at Tai Lam Correctional Institution.  Although the applicant did not elaborate on when he was incarcerated, we are prepared to accept that he did not receive the judgment.  We would, however, point out that the applicant should have informed the Court of the change in his address after he was detained.   

7.  As to the merits of the intended appeal, 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.

8.  The notice of motion stated that (i) the judges were wrong as a matter of law for not applying the principle of procedural unfairness whereby the Director of Immigration is required to give reasons justifying his decision; (ii) the judges were wrong as a matter of law for not applying the principle of irrationality; (iii) there is some error in the determination of the applicant’s case.  The decision maker just relied on country of origin information and facts that favour the rejection of his case; (iv) the actual country condition is different.  The immigration officer and the High Court prefer to ignore the overwhelming evidence of violence committed on the minorities; (v) the judge did not apply the law properly and there was procedural unfairness; and (vi) the applicant’s life is in danger in his country. He will be killed or harmed upon his return.

9.  The written submission lodged on 20 January 2022 quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and referred to decisions on Wednesbury unreasonableness and also section 37ZT of the Immigration Ordinance which concerns the late filing of notice of appeal to the Board.  It submitted that: (1) the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim; (2) the Board acted in a procedurally unfair manner in dealing with the applicant’s case and did not properly assess his credibility.        

10.  The matters put forward by the applicant do not afford any basis for granting leave to appeal.  Importantly, they all relate to the applicant’s claim and personal circumstances.  It has not been shown that the intended appeal involves a question of great general or public importance. 

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.  

(Peter Cheung)	(Carlye Chu)	(Maggie Poon)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant, unrepresented, acted in person.

  

CACV 18/2021

[2021] HKCA 917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2021

(ON APPEAL FROM HCAL NO. 1046 of 2018)

________________________

RE

CHATER SAINGH

Applicant

________________________

Before: Hon Cheung, Chu and M Poon JJA in Court

Date of Judgment: 30 June 2021

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 11 January 2021 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 31 October 2016 rejecting his non-refoulement claim against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 31 May 2018 dismissing his appeal against the Director’s decision.

2.  The applicant has consented to his appeal being determined on the papers without an oral hearing.

3.  Despite the direction and an unless order given by the Registrar of Civil Appeals, the applicant has failed to lodge any written submission by the extended deadline of 3 May 2021.  The applicant is deemed to have abandoned his right to rely on written submission, and we will process this appeal on paper based on the available materials.      

4.  The applicant is an Indian national aged 34.  He entered Hong Kong on 13 February 2013 and was given permission to remain as a visitor for 14 days.  He overstayed and was arrested by the police on 28 July 2013.  He later raised a non-refoulement claim based on his fear of being harmed or killed by the family of his girlfriend, Shazia, because they disapproved their relationship and also blamed him for Shazia’s death.    The applicant’s case was set out in detail in the Director’s decision and also the Board’s decision, and summarised by the Judge in [2] to [4] of the Form CALL-1 dated 11 January 2021 ([2021] HKCFI 82).  We will not repeat it.

5.  By a Notice of Decision dated 31 October 2016, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4] grounds.   

6.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 7 March 2018, during which the applicant had answered questions put by the Board.  By its decision dated 31 May 2018, the Board dismissed the appeal.  In short, the Board found there were credibility issues with the applicant’s evidence and rejected his case that he had been in a relationship with Shazia and that she had committed suicide.  The Board also noted that the applicant accepted he would be safe in New Delhi where he had stayed for two and a half years before leaving for Hong Kong.  The Board held that the applicant’s fear of being killed or harmed was not made out on the evidence, and concluded that he failed to substantiate his non-refoulement claim under all applicable grounds.        

7.  The applicant filed his Form 86 together with a supporting affirmation on 8 June 2018 to seek leave to apply for judicial review against both the decisions of the Director and the Board.  The Form 86 did not contain any ground for seeking relief.  In the supporting affirmation, the applicant stated that he wanted to set aside the decisions because they disregarded the danger and threats he would face in his home country.       

8.  By his decision of 11 January 2021, the Judge refused to give leave to apply for judicial review.  The Judge pointed out that the applicant had not put forward any proper grounds for seeking relief, and had provided no particulars to support his assertions in the affirmation.  The Judge took note that the Board rejected his claim essentially on its adverse finding on his credibility, and considered there was no arguable basis to challenge the Board’s finding.  The Judge further had regard to the Director’s and the Board’s finding that the risk of harm in the applicant’s case was a localised one.  He found there was no error of law or procedural unfairness in either the Director or the Board’s decision, and concluded that the intended judicial review had no reasonable prospect of success.

9.  The applicant filed a Notice of Appeal on 21 January 2021 to appeal the Judge’s decision.  In it, the applicant stated that (1) there is a lack of representation; (2) his application has realistic chance of success; and (3) BOR 1 and BOR 2 risks could be established in his case. 

10.  The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below.  The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(2)].      

11.  In the present case, the applicant had not provided any proper ground for seeking relief by way of judicial review.  As such, his intended judicial review could not have succeeded.  In the circumstances, there was no basis on which the Judge could have granted leave to apply judicial review. 

12.  Further, what were stated in the notice of appeal do not constitute viable grounds of appeal.  They are broad and vague assertions unsupported by any particulars.  As pointed out by the Judge, his claim was disbelieved by the Board and there is no ground to overturn the Board’s finding.  As such, there is no proper basis for the assertion that he had a case under the Hong Kong Bill of Rights Ordinance, Cap. 383.  In the circumstances, the applicant’s appeal is unarguable.

13.  For the above reasons, we dismiss the appeal.

(Peter Cheung)	(Carlye Chu)	(Maggie Poon)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant, unrepresented, acted in person.