RE KANG SOHAN SINGH

CACV 585/2021

[2022] HKCA 1466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 585 OF 2021

(ON APPEAL FROM HCAL NO. 1387 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 14 April 2022, this Court handed down a judgment ([2022] HKCA 524) dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 15 April 2021 who refused to grant extension of time for leave to the applicant to apply for judicial review in respect of his non‑refoulement claim.

2.  On 26 April 2022, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  The applicant has also lodged written submissions on 10 May 2022.

3.  Having considered the applicant’s notice of motion and written submissions, 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 at [3] and [4] in our judgment.  We shall not repeat them here.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) 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.

6.  The applicant’s grounds of appeal stated in the notice of motion, which appears to be copied from some proforma seen often in these type of proceedings, are as follows :

‘ 1. The learned Judges were wrong as a matter of law for not having applied the principles of procedural fairness to the decision of the director whereby the director was required to give reasons justifying the decision.

2. The learned Judges were wrong as a matter of law for not having applied the principles of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3. There is some error in law in my decision.  The decision maker just relied on COL [sic] information [and] my previous facts, which were favor on rejecting my claim.

4. Actual life occur different situation then mentioned COL [sic] information.  Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

5. The Judge did not apply the law properly & Procedural unfairness.

6. I further want to explain that my life is in danger in my country.  I would be killed or harmed if I return back to my country.’

7.  As for the applicant’s written submissions, they are regrettably again copied in verbatim from the submissions previously before this Court filed on 30 December 2021.  As we have dealt with these contentions at [12] in our previous judgment, we will not repeat it here. 

8.  In the circumstances, we are of the view that the grounds and arguments put forward by the applicant 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.

9.  We further do not see any basis for the ‘or otherwise’ limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, accordingly, we dismiss the notice of motion dated 26 April 2022.

CACV 585/2021

[2022] HKCA 524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 585 OF 2021

(ON APPEAL FROM HCAL NO. 1387 OF 2021)

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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 extension of time for leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) dated 15 April 2021 and dismissed the application for leave to apply for judicial review.

2.  Pursuant to the directions of the Registrar of Civil Appeals on 6 December 2021, the applicant was required to provide written submissions to the Court by 20 December 2021.  He only did so on 30 December 2021.   The applicant agreed to have the appeal disposed of on paper without an oral hearing.

II.  Factual background

3.  The applicant is a national of India.  He arrived in Hong Kong as a visitor on 29 August 2014 but overstayed.  He surrendered to the Immigration Department on 5 July 2016 and raised a non‑refoulement claim on the basis he would be harmed or killed by a fellow villager due to a land dispute in his home village.

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

III.  The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 20 September 2018.  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 and attended an oral hearing on 4 November 2019 before the Board.  The Board dismissed the applicant’s appeal against the Director’s Decision on 15 April 2021.

7.  The Board did not accept the veracity of the claims of the applicant.  The Board’s view was the applicant’s evidence was inconsistent and contained unexplainable discrepancies, in particular, the delay of almost two years to raise his claim after his arrival in Hong Kong further undermined his credibility.   In any event, the Board found that the dispute was private in nature without the involvement of the Indian government.  Moreover, internal relocation was not unreasonable for the applicant.  In the circumstances, the applicant’s appeal was dismissed.

V.  Decisions of the Judge

8.  The applicant filed a Form 86 with a supporting affirmation.  In his supporting affirmation, he simply annexed the decision of the Board. 

9.  An oral hearing was held before the Judge on 23 November 2021.  On 10 December 2021, the Judge dismissed the application.  The Judge held that the applicant’s delay of 11 weeks in bringing the application for leave for judicial review was substantial and no explanation has been provided by the applicant.  As to the merits of the application, the Judge held the view that the proposed grounds were simply broad and vague assertions without any meaningful particulars or specifics as to how they applied in the applicant’s case.  There were also grounds which were wholly irrelevant to his claim.

10.  The Judge further found that there was no error of law or procedural unfairness that could be found and therefore, the application was dismissed.     

VI.  Grounds of appeal

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

‘ 1. The Director’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weight-age to the presence of state Acquiescence in my case. This has indeed led to an unfair outcome of rejecting my non-refoulement claim.

2. I submit that the Director, the Adjudicator and the Court has failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

3. The Adjudicator failed to make sufficient enquiring before finalizing the determination.  The Adjudicator stated that I had failed to advice any credible evidence to prove material elements of his claim.

4. The adjudicator has failed to give sufficient chance to me to arrange relevant evidence to my non-refoulement claim as well as my appeal.  As I was detained at the Castle Peak Bay Immigration Centre I was not given time to prepare my case story properly.

5. Surprisingly, the director in my Decision while referring to relevant COIs kept including meaning which suited my pre-conceived conclusion.  This was a clear case of unfair attitude shown by the Director which in itself is enough to render my Decision void.

6. The grounds of this appeal are that the gravity of my circumstances has noted been weighted or realized by both putative Respondents while considering my non-refoulement claim.  I should be given an opportunity to plead my case properly.’

VII.   Our view

12.  The grounds of appeal as stated in the notice of appeal are almost similar to the grounds relied upon by him in his Form 86.  They are broad and vague allegations without specifics or elaboration as commented by the Judge.  In the applicant’s written submissions, he recited case authorities that are frequently used in general non-refoulement claims and statutory reference without detailing how those principles related to his case.

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 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 is simply no merit in the applicant’s appeal.  The Judge had provided his reasons of refusal in his decision.  There is no error in the Judge’s decision.  Accordingly, the appeal is dismissed.