RE SATHAIAH SUBBAIAH

CACV 200/2021

[2022] HKCA 1462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2021

(ON APPEAL FROM HCAL NO. 1242 OF 2018)

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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) :

1.  On 25 October 2021, this Court handed down a judgment ([2021] HKCA 1570) dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 22 April 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 3 May 2022, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant also lodged written submission out of time.

3.  Having considered the applicant’s documents, 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 (‘HKCFAO’) (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) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by over five months.  The delay is serious.  The applicant explained in his affirmation that he was ‘unaware’ of the ‘14‑days time limit and was unrepresented’.  He stated that he was detained at Castle Peak Immigration Centre.  Firstly, the applicant is misconceived with a 14‑day time limit as against a 28‑day time limit.  Secondly, according to Court record, our judgment was sent to the applicant’s last known address and it is the duty of the applicant to keep the Court updated on his most up to date whereabouts.  The applicant’s reasons for the delay are not acceptable.

7.  As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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 the following in summary :

1)  The Judges were wrong not having applied the principle of procedural unfairness;

2)  The Judges were wrong not having applied the principle of irrationality;

3)  The decision maker relied on COL information which was favour on rejecting his claim;

4)  Courts ignore evidence of violence towards minorities;

5)  The Judge did not apply the law properly;

6)  The applicant will be killed or harmed if he returns home.

9.  The applicant in his written submissions cited general principles used in non‑refoulement cases without identifying how they relate to the particulars of his case.

10.  We are of the view that the grounds and arguments put forward by the applicant are devoid of merit.  They do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

10.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

CACV 200/2021

[2021] HKCA 1570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2021

(ON APPEAL FROM HCAL NO. 1242 OF 2018)

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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) :

I)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’)  on 22 April 2021.

2.  Pursuant to the directions of the Registrar of Civil Appeals on 9 June 2021, the applicant was required to provide written submissions to the Court by 23 June 2021.  The applicant has failed to do so, and pursuant to paragraph 7 of the same directions, the applicant is now deemed to have abandoned his right to rely on written submissions, and his notice of appeal will be dealt with on paper.

II.   Background

3.  The applicant is a national of India.  He arrived in Hong Kong as a visitor but he overstayed.  He then raised a non-refoulement claim on 19 November 2014 on the basis that if he returned to India he would be harmed or killed by another rival political party as they had killed his brother, perpetuated riots, attacked him, or caused damage to his house.

4.  The details of the applicant’s claim have been summarized by the Deputy Judge at [2]-[4] of the CALL-1 Form.

III.   The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 31 July 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

IV.   The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 8 August 2017.  After a hearing held on 8 March 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 22 June 2018.

7.  The Board found that there was no credible evidence and linkage between the applicant’s brother’s death and any threat to the applicant in the future.  There were inconsistencies in answers between the applicant’s non-refoulement claim form, his answers in his interview, and his oral evidence.  During the alleged riots, the applicant was not harmed in any way, and even though the applicant’s house was damaged by the rioters, the applicant was not himself harmed.  The applicant was not specifically targeted.

V.   Decision of the Judge

8.  The applicant filed a Form 86 with a supporting affirmation.  No grounds of relief were set out in his Form 86.  In his supporting affirmation, he merely repeated that he cannot go back to his home country as his life was still in danger.

9.  The Deputy Judge on 22 April 2021 held that the applicant did not put forward grounds for challenge, nor did he request any oral hearing.  There was no error of law or procedural unfairness that could be found.    

VI.   Grounds of appeal

10.  The applicant in his notice of appeal stated the following :

‘ I cant go back to my country at this moment because my life is not save there. Please help me to stay in Hong Kong. So…I can save my life.’

11.  The grounds of appeal as stated in the notice of appeal are bare allegations without specifics or elaboration.

VII.   Our view

12.  We will repeat the approach of this Court in dealing with cases of this nature :

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 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 the 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 (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 their decisions.

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.  In the determination for 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 a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

13.  In our view, there is no merit in the applicant’s appeal.  The Deputy Judge had provided his reasons of refusal in his decision.

14.  We see no error in the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.

The applicant, unrepresented, acting in person