RE RAI APSHARA

CACV 147/2022

[2023] HKCA 384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 147 OF 2022

(ON APPEAL FROM HCAL NO. 381 OF 2019)

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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 October 2022, this Court handed down judgment ([2022] HKCA 1501)  dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 6 April 2022 refusing her application for leave to apply for judicial review in respect of her non-refoulement claim.

2.  On 9 December 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 within 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 about one month.  The applicant in her affirmation stated that she was late due to a lack of knowledge and insufficient resources.  This is a bare allegation unsupported by any particulars or explanation.  We do not accept such explanation for the delay.

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 :

‘ Respected Sir / Madam, I am late for apply due to lock of knowledg and insuffiecient sources. Please accept my filling application so that i can process my case further. I hope i will get your favour.’

9.  The applicant’s written submission complained of her fear that it was unsafe to return, her facts in her case being ignored by decision makers, that she wishes to stay in Hong Kong until her problems are solved, that she has no strength to fight the police, that her country was corrupt, and that she is an asylum seeker who does not have enough resources.

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.

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

12.  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.

Applicant, unrepresented, acting in person

CACV 147/2022

[2022] HKCA 1501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 147 OF 2022

(ON APPEAL FROM HCAL NO. 381 OF 2019)

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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 the appeal against the decision of Deputy High Court Judge Bruno Chan (the ‘Judge’) dated 6 April 2022, where he refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 11 January 2019.

2.  The applicant consents to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.  The applicant is a national of India.  She entered Hong Kong illegally on 27 October 2015.  She was subsequently arrested by the police on 28 October 2015. She raised a non‑refoulement claim by way of written representation on 1 November 2015 on the basis that she would be harmed or killed by her stepmother and her stepmother’s brother due to a land dispute. 

4.  The background and details of the applicant’s claim have been summarised by the Judge at [1]-[3] of the CALL‑1 Form dated 6 April 2022 (published as [2022] HKCFI 992) (the ‘CALL‑1 Form’).

III.  The Director’s Decision

5.  The Director of Immigration (the ‘Director’) decided against the applicant’s claim on 28 February 2018.  The decision covered all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of her absolute or non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’) being violated including right to life under Article 2 (‘BOR 2 Risk’) and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (‘BOR 3 Risk’), and risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk’).

6.  The Director found no substantial grounds for believing that the applicant would be harmed by her stepmother or her stepmother’s brother as there is no real intention of them to cause her serious harm.  In any event, the Director was of the view that it was a private monetary dispute, for which state or police protection was available.  Further, based on reliable and objective Country of Origin (‘COI’) information, the Director found that reasonable internal relocation alternatives were available to the applicant.

IV.  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was held on 8 October 2018.  On 11 January 2019, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

8.  The Board simply did not accept the veracity of the applicant’s claims.  The Board held there were serious inconsistences and unexplainable discrepancies in the applicant’s evidence, such as being unable to recall the date of her mother’s death and the particulars of the land allegedly inherited from her mother.  The Board basically did not accept the applicant’s claim in its entirety, namely that her mother has actually passed away and the existence of a stepmother. The Board went further that even if the above scenario is true, it does not accept that the applicant had inherited any land.

V.  The Judge’s Decision

9.  On 11 February 2019, the applicant filed a Form 86 with a supporting affirmation.  In her supporting affirmation, she simply stated that she is not satisfied with the decision of the Board as she continues to face problems in India.  There was no proper ground put forth for her intended challenge.

10.  As set out in [8] to [13] of the CALL-1 Form, the Judge did not find any error of law or procedural unfairness in the decisions of both the Director and the Board, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review, and he dismissed the applicant’s leave application.

VI.  The present appeal

11.  The applicant filed a notice of appeal on 19 April 2022.  In her notice of appeal, the applicant states the following :

‘ I am not satisfied with the decision because ts [sic] away form [sic] facts and reality which are related with my case. There is no any Transparency in these disision [sic]. please accept my application and allow me to process further my case’

12.  As for the applicant’s written submissions, she repeats her fear of returning to India as she will be killed or harmed by her enemies.  However, these contentions, together with those raised in the notice of appeal, are just bare assertions and not proper grounds of appeal.

VII.   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 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.

15.  The Judge had duly considered the decisions of the Director and of the Board, and had provided proper reasons for refusing the application.  The applicant has failed to identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.  Accordingly, the appeal is dismissed.