Case Detail

CACV 578/2021

[2022] HKCA 1701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 578 OF 2021

(ON APPEAL FROM HCAL NO 1553 OF 2018)

________________________

RE:

NIRMAL SINGH

Applicant

________________________

Before: Hon Au and Chow JJA in Court

Date of Judgment: 17 November 2022

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J U D G M E N T

________________________

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

1. On 13 September 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 1 September 2022 (“the Judgment”) ([2022] HKCA 1280). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 15 December 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 3696).

2. The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4. In his Notice of Motion, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NON REFOULEMENT CLAIM. I WAS NOT SATISFAID SO I CAME TO THE HIGH COURT FOR LEAVE TO APPEAL FOR JUDICIAL REVIEW. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY APPLY. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

5. Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 27 September 2022. In those submissions, he merely repeated the factual basis and procedural history of his non-refoulement claim. He contends that his life would be under threat in his home country and that he could be killed by his enemy, and further asserted that the law and order situation in his country is very bad. He then claimed that all asylum seekers are facing the same problem and for the great interest of all asylum seekers he wanted to bring his appeal to the Court of Final Appeal.

6. In our view, his intended appeal is clearly without substance. At the outset, the allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence. He also failed to condescend upon particulars or provide any evidence in support as to how “all asylum seekers are facing the same problem”. More importantly, he did not identify any specific error in the Judgment with sufficient particulars. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. Accordingly, the applicant’s intended appeal plainly has no merit.

7. Further, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

8. Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

9. For the above reasons, the Notice of Motion filed on 13 September 2022 is dismissed.

(Thomas Au)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The applicant acting in person

CACV 578/2021

[2022] HKCA 1280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 578 OF 2021

(ON APPEAL FROM HCAL NO 1553 OF 2018)

____________________

RE:

NIRMAL SINGH

Applicant

____________________

Before: Hon Au and Chow JJA in Court

Date of Judgment: 1 September 2022

_______________

J U D G M E N T

_______________

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

1. This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 15 December 2021, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2021] HKCFI 3696).

2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 24 July 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 July 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3. On 21 December 2021, the applicant indicated his consent for this appeal to be disposed of on paper. Accordingly, we proceeded to consider this appeal on paper based on the available materials.

Background

4. The applicant is a national of India. He was arrested by the police on 8 December 2015 and was referred to the Immigration Department on 10 December 2015. He claimed that he entered Hong Kong on 8 December 2015. On 11 December 2015, he raised a non‑refoulement claim on the basis that if he returned to India, his brother and his brother’s sons would kill or harm him owing to a land dispute. He also said his wife’s business partners would mentally harass the applicant since he was unable to pay his debt. Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] of the Leave Decision.

5. By a Notice of Decision dated 26 July 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk^{^[1]}, BOR2 risk[2], BOR3 risk^{^[3]} and persecution risk^{^[4]}. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

6. On 9 August 2017, the applicant appealed against the Director’s Decision to the Board. The applicant attended the hearing before the Board on 24 May 2018 and gave evidence with the assistance of an interpreter. The Board dismissed his appeal on 24 July 2018. Having assessed the evidence, the Board considered that the level of risk of the applicant being subjected to the requisite ill-treatment if he was refouled to India to be low and that the conflicts as alleged by the applicant were, at their highest, purely personal, private and commercial in nature. The Board also considered that state protection would be available to the applicant. Having assessed the evidence, the Board considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, his appeal was dismissed.

The Leave Decision

7. On 6 August 2018, the applicant applied for leave to apply for judicial review against the Board’s Decision. In his supporting affirmation, he only stated that the Board disregarded his dangerous situation.

8. By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [12] ‑ [18] of the Leave Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration[2018] HKCA 524 §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. In Re: Kartini[2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13 (1).… …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 the decision of the Board.’
15. He has submitted no valid ground to assist his application. The Board has reject his evidence on the factual basis of his claim. He therefore has no factual basis in support of his claim.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.
CONCLUSION
18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.”

The Appeal

9. On 21 December 2021, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:

“THE HIGH COURT DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW AS HE DID NOT FIND ANY ERROR I WANT TO SHOW ERROR.” (sic)

10. Contrary to the directions made by the Registrar of Civil Appeals on 21 December 2021, the applicant did not lodge any written submissions in support of his appeal.

Discussion

11. The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14].

12. 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’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

13. Nowhere in his Notice of Appeal did the applicant identify any error made by the Deputy Judge in the Leave Decision with specific particulars. General assertions of his fear if refouled also do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar[2022] HKCA 627 at [6]. As such, there is simply no viable ground of appeal and plainly no basis to disturb the Leave Decision.

14. Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.

(Thomas Au)	(Anderson Chow)
Justice of Appeal	Justice of Appeal

The applicant acting in person

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] 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.

[4] 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 NIRMAL SINGH

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