RE NAVJOT SINGH

CACV 112/2022

[2022] HKCA 1456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 112 OF 2022

(ON APPEAL FROM HCAL NO 427 OF 2019)

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JUDGMENT

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Hon B Chu J (giving the Judgment of the Court):

1.  On 20 July 2022, this court handed down a judgment ([2022] HKCA 1012) dismissing the applicant’s appeal against the decision of Campbell-Moffat J given on 29 March 2022 refusing the applicant’s application for leave to apply for judicial review.

2.  On 5 September 2022, the applicant filed a notice of motion (“Notice of Motion”) out of time to apply for leave to appeal against this Court’s judgment to the Court of Final Appeal. He filed an affirmation on the same day in support of his application for seeking leave to file the Notice of Motion out of time.

3.  Pursuant to directions given by the Registrar for Civil Appeals, the applicant has lodged his written submissions on 19 September 2022 to support his application (“Written Submissions”).

4.  Having considered the Notice of Motion, his affirmation and the 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.

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

6.  In his affirmation, apart from stating that he did not agree with the decision of this Court and that all the decisions of his claim have made him liable to be removed to the risk state, there were no reasons given by the applicant to explain why his Notice of Motion was filed out of time.

7.  In the Notice of Motion, the applicant stated that he did not agree with our decision because the decision maker did not consider his appeal and that his problem was serious in his home country. He complained that the decision makers did not consider his claim and refused his claim without scrutinizing his problem in his home country and that all the decisions made him liable to be removed to the risk state India.

8.  In his Written Submissions, the applicant submitted amongst other things that:

(1)  the judges were wrong in law for not having applied the principle of irrationality to the decision made by the Director and the Board;

(2)  the judges did not apply the “high standards of fairness”;

(3)  the judges were wrong in law for not having applied the principle of “procedural unfairness”;

(4)  the judges failed to exercise greater care and did not analyse his claims properly;

(5)  the judges had failed to give sufficient chance for the applicant to arrange for relevant evidence to support his claim;

(6)  the applicant will face hardship if he is to return to his home country and Board had significantly relied on source of news which were not officially recognised or it was simply hearsay.

9.  The applicant repeats in the Written Submissions that his life will be under threat in his home country and that he will face hardship if he returns to his home country. There is a high risk of being tortured by his enemies in India and that he has a serious fear of returning to his home country.

10.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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.

11.  The applicant’s affirmation did not set out any reasons for his delay in filing the Notice of Motion. What was stated by the applicant in the Notice of Motion and Written Submissions relate solely to the circumstances and facts of the applicant’s claim, without identifying any error of law in our judgment. No question of great general and public importance has been identified, as required by section 22(1)(b) of the Ordinance. Further, for the reasons we gave in paragraphs [13] to [16] of our judgment, the matters put forward by the applicant in this application are unarguable. We also do not see any basis for the “or otherwise” limb under section 22(1)(b). The statutory criteria of obtaining leave to appeal to the Court of Final Appeal are not met.

12.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal out of time and dismiss the Notice of Motion.

The applicant, unrepresented, acting in person.

CACV 112/2022

[2022] HKCA 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 112 OF 2022

(ON APPEAL FROM HCAL 427 OF 2019)

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J U D G M E N T

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Hon B Chu J (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Campbell-Moffat J. (“the Judge”) set out in the Form CALL-1 dated 29 March 2022, by which the Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 855).

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 January 2019 (“the Board’s 2^nd Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 March 2017 (“the Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of India.  He arrived in Hong Kong on 20 August 2015 and was refused permission to land.  On 21 August 2015, he lodged a non-refoulement claim on the basis that he would be harmed or killed by his enemies from the Bharatiya Janata Party (“BJP”) as he had conflicts with them when he was involved in the village head election campaign of Congress Party in his village.    The factual details of the applicant’s claim were summarised by the Judge at [4] of the Leave Decision.

4.  By a Notice of Decision dated 28 October 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all the then applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated. He later appealed to the Board and his appeal was dismissed on 28 January 2016 (“the Board’s 1^st Decision”). 

5.  By the Director’s 2^nd Decision, the Director rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4]. 

6.  On 11 April 2017, the Board received the applicant’s Notice of Appeal against the Director’s 2^nd Decision. As the deadline for filing his Notice of Appeal to Board was 29 March 2017, the applicant was late for 13 days. As to his reason for delay, he stated that it was because he did not speak or write English and his friend helped him. 

7.  On 24 January 2019, by the Board’s 2^nd Decision, the Board dismissed his appeal.  Having considered the materials before it, the Board considered that the applicant failed to provide good reasons for his delay and in any event, after considering the merits of his claim, the Board considered that the applicant would not face grave human rights breaches after his return to India and did not substantiate his claim.   

The Leave Decision

8.  On 15 February 2019, the applicant applied for leave to apply for judicial review against the Board’s 2^nd Decision. No ground of review was given in his Form 86. In his supporting affirmation, he only stated he was not satisfied with the Board’s 2^nd Decision and he could not go back to his country as his life was not safe. As he did not request an oral hearing, the Judge considered his application on paper. 

9.  By the Leave Decision, the Judge refused to grant leave to the applicant to apply for judicial review.  Her reasons were set out at [10] to [11] of the Leave Decision:

“10. … As for his appeal under BOR2, the applicant was out of time. The Adjudicator applied the relevant legislation applicable to late filing and in accordance with s37ZT of the Immigration Ordinance, Cap 115, considered whether an application for late filing should be allowed. As the applicant had failed to provide any documentary support, the Adjudicator was therefore limited to the papers before her. She applied all relevant legal principles in a fair and just manner providing her reasoning. I cannot fault it.

11.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The Appeal

10.  On 12 April 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculation.” (sic)

11.  Pursuant to the directions given by the Registrar of Civil Appeals on 29 April 2022, the applicant filed his written submissions on 18 May 2022.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision.  He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case. More importantly, none of his submissions identified any error in the Leave Decision.

12.  We heard the appeal on 6 July 2022.  During the hearing, the applicant had nothing to say. 

Discussion

13.  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].

14.  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. 

15.  Nowhere in his Notice of Appeal or written submissions did the applicant identify any error in the Leave Decision.  Insofar as the allegations made in his Notice of Appeal are concerned, as pointed out by the Judge, his appeal in relation to BOR 2 risk to the Board was made out of time.  The Board had applied all the relevant legal principles under s.37ZT of the Immigration Ordinance, Cap 15 and the relevant case law. There was no procedural unfairness or error of law in the public law sense in her decision. Accordingly, we see no basis to interfere with the Leave Decision. 

16.  In relation to the matters raised in his written submissions, they are general and vague and only related to complaints directed at the the Board. They are also new and not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh[2021] HKCA 1740 at [15].  More importantly, the applicant failed to demonstrate why the Judge was wrong in the Leave Decision.  The authorities cited by the applicant therefore do not assist his case.  

17.  For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.

The applicant acting in person