RE AMANPREET SINGH

CACV 569/2021

[2022] HKCA 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 569 OF 2021

(ON APPEAL FROM HCAL NO. 1359 OF 2021)

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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 11 May 2022 this Court (Cheung JA and Cheng J) handed down our judgment ([2022] HKCA 652]) dismissing the applicant’s application to appeal against the decision of Deputy High Court Judge KW Lung given on 7 December 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim (‘Judgment’).

2.  On 10 June 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 lodged his written submissions on 24 June 2022.

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 application for leave to appeal is only two days out of time.  We do not consider that this is fatal to the application.  In any event, the more important consideration in deciding whether to extend time is the prospect of the applicant’s intended application for leave to appeal to the Court of Final Appeal.

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

8.  The notice of motion states :

‘ With due respect and humble submissions, I beg to you that I don’t accept the decision of the Court, because I am not agree with the decision of the Court. The decision made be unhappy and disappointed about my life security. The decision maker relied on simply and this decision is unfair. If I return back to my home country I will be killed by my enemy. My enemy is still looking for me but this decision make me liable to remove from Hong Kong to risk state, in my home country. The Torture Claims Appeal Board and Direction of Immigration did not scrutinize my claim properly in my home country. ’

9.  The written submissions are nearly identical to those submitted at the appeal, save that the applicant additionally contends that the adjudicator was irrational in his assessment of the evidence – without pointing to any specific error in the weighing of the evidence.

10.  Having considered the notice of motion and submissions, we are of the view that the grounds put forward by the applicant do not constitute viable grounds for giving leave to appeal.  They failed to show that the Court of Appeal was wrong in dismissing their appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

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

12.  In the circumstances, the intended application for leave to appeal to the Court of Final Appeal has no prospect of success.  This being the case, it would be futile to extend the time for making the application.  Accordingly, we refuse to extend the time and dismiss the notice of motion.

CACV 569/2021

[2022] HKCA 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 569 OF 2021

(ON APPEAL FROM HCAL NO. 1359 OF 2021)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

1)  The appeal

1.  This is an appeal against the decision dated 7 December 2021 of Deputy High Court Judge K W Lung who refused to extend time to the applicant to apply for leave to commence judicial review against the decision of the Torture Claims Appeal Board (‘the Board’)  on 16 January 2020 and dismissed his application.  Form 86 of the applicant was filed on 28 September 2021 which was well over the 3-month time limit (over one year and five months).  The applicant was absent at the hearing of his appeal. We will deal with the appeal on paper.

2)  Background

2.  The applicant is a national of India.  He entered Hong Kong in August 2010 as a visitor but overstayed.  He raised a non-refoulement claim in December 2010 on the basis that if he returned he would be harmed or killed by two men who have forcefully occupied his family’s farmland.

3.  The details of the applicant’s claim have been summarized by the Judge at [4] to [5] of the CALL-1 Form.

3)  The Director’s Decisions

4.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 28 May 2015.  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’), as well as his other statutory and convention rights against torture and persecution (‘the Director’s First Decision’).

5.  The Director decided against the aplicant’s right to life claim on 5 May 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decisions

6.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 23 August 2016, the Board dismissed the applicant’s appeal against the Director’s decision on 8 March 2017 (‘the Board’s First Decision’).

7.  After the statutory time limit for the applicant to lodge an appeal against the Director’s Further Decision had lapsed, the applicant appealed against the Director’s Further Decision. 

8.  The Board held that it had every reason to believe that after the applicant received the Director’s Further Decision, he was able to file his appeal within the time limit.  The Board did not accept his explanation for the late filing of his appeal.  In any event, the Board held that even if it accepted the applicant’s late filing, there was no prospect of the appeal succeeding.  He had not raised anything new to what he had already raised in his application which led to the Director’s First Decision.  Accordingly, the Board refused to accept the late filing of the appeal, dismissed the appeal and confirmed the Director’s Further Decision (‘Board’s Second Decision’).

5)  Decision of the Judge

9.  The applicant filed a Form 86 with supporting affirmation before the Judge.  The applicant sought leave for judicial review against the Board’s Second Decision only.

10.  The Judge assessed the applicant’s case and held that the delay was serious.  He held that the Board’s Second Decision on BOR 2 had taken into account the findings of the Board’s First Decision in relation to BOR 3, torture and persecution risks.  There was no error of law or procedural unfairness in the Board’s Second Decision.

6)  Grounds of appeal

11.  The applicant stated in his notice of appeal that he will face hardship if he is to be repatriated.  He stated that the Board relied on source of information which is not officially recognized or is simply hearsay.  He stated that the Judge did not scrutinize his application.  There was a lack of credible source of information.

12.  The applicant in his written submissions referred to the general principles on non-refoulement without elaborating or specifying how those principles apply to the particular facts or circumstances of his case.  They are bare assertions against the analysis of the Judge without basis.

7)  Our view

13.  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 claims 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.

14.  In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground for his appeal.

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

Applicant, unrepresented, absent