RE RAVINDER SINGH

CACV 251/2022, [2024] HKCA 395

On Appeal From [2022] HKCFI 1733

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 251 OF 2022

(ON APPEAL FROM HCAL NO. 2679 OF 2018)

____________________

____________________

____________________

DECISION

____________________

Hon Cheung JA (giving the Decision of the Court):

1.  On 14 March 2023, this Court handed down the judgment ([2023] HKCA 341) dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 17 June 2022 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 12 May 2023, the applicant filed a notice of motion and affirmation applying for leave to appeal against this Court’s judgment to the Court of Final Appeal out of time.  The applicant also lodged written submission within time.

3.  On 27 December 2023, the Appeals Registry received a request from the applicant to dismiss his notice of motion.

4.  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.

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

6.  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.

7.  The applicant’s present application is out of time by over one month.  The applicant in his affirmation explained that he did not receive the decision.  The applicant explained that it was a delay of mail.  According to the Court record, our judgment of 14 March 2023 was sent to the applicant’s last known address in Kwun Tong on 14 March 2023 without the letter being returned.  The applicant’s delay is therefore inexcusable.  In any event, we will consider the merits of the case.

8.  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.

9.  In summary the applicant stated the following in the notice of motion :

1)  The applicant was not aware of the Court letter dated 14 March 2023.

2)  The lack of assistance provided to the applicant was an error of law or procedure.

3)  The determination was never translated or read back to me.

4)  The applicant had to ask for help without having the ability to verify if everything is correct and true.

5)  The authorities have not made reasonable arrangements to enable me to understand the judgment contents.

6)  The applicant was not fully informed of his rights and was not allowed to be heard with assistance.

7)  The prospect of success should not be made at this stage because the applicant was deprived of making full appeal without the help of language assistance. Even when the documents from the applicant are written in English it does not mean they are professional and that is the reason why the applicant failed to point out errors in decision.

10.  In summary the applicant stated the following in his written submission :

1)  The judgment does not make sense.

2)  He seeks reconsideration based on unfairness in that he requires language and legal assistance.

3)  The Board’s Decision was never read back or translated to him.  It is his basic right to understand what was decided against him.

4)  It is not true that he understood the decision as there were legal jargons without legal assistance.

5)  The same extends to the decision of the Court of First Instance.  Without understanding the decision he could not point out errors of law.

6)  Lack of language assistance should be deemed unlawful, as it deprives his right to lodge a full appeal.

7)  The Court did not explain why no language assistance can be provided to him.

8)  Lack of language assistance is procedural unfairness.

9)  It is discrimination against him who does not have legal access.

10)  Non-refoulement claimant should be treated the same despite various stages of his application.

11)  The authority should not dispose of non-refoulement cases as quickly as possible.

12)  Lack of language assistance still exist today.

11.  The main complaint of the applicant’s notice of motion and written submission is the lack of language assistance.  In Kamran Khan[2022] HKCFI 1924 at [18] to [26], Deputy Judge To has clearly held that it is trite from the authorities that high standard of fairness does not prescribe the applicant absolute right to free legal and language assistance at all stage of the proceedings.  He held that it must be borne in mind that it was the applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community.   The Court of Appeal [2024] HKCA 230 refused to grant extension of time to appeal against Deputy Judge To’s decision and further approved his view on the issue of language assistance.  The Court of Appeal in Karamjit Singh, CACV 78/2018 agreed with the Court of First Instance that it could not have been the intention of the authority that the principle of high standard of fairness would include provision of interpretation service at any time an applicant desires or requires.  

12.  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.

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

14.  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.

15.  We would also, according to the applicant’s request for dismissal of appeal, dismiss the applicant’s notice of motion.

CACV 251/2022

[2023] HKCA 341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 251 OF 2022

(ON APPEAL FROM HCAL NO. 2679 OF 2018)

____________________

____________________

____________________

JUDGMENT

____________________

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

I.  The appeal

1.  This is an appeal against the decision (the ‘Decision’) of Deputy High Court Judge Bruno Chan (the ‘Judge’) of 17 June 2022 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 23 November 2018, which dismissed his appeal against the decision of the Director of Immigration (the ‘Director’) dated 27 September 2017 rejecting his claim for non‑refoulement protection.

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.  He entered Hong Kong illegally on 31 October 2014 and surrendered to the Immigration Department on 16 April 2015. He raised a non - refoulement claim on the basis that if he returned to India he would be harmed or killed by his former girlfriend’s family who objected to their relationship.

4.  The background facts have been summarised by the Judge at [1] to [7] of the Decision.

III.  The Director’s Decision

5.  The Director’s 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 (the ‘Director’s Decision’).

IV.  The Board’s Decision

6.  After a hearing held on 26 July 2018, the Board dismissed the applicant’s appeal (the ‘Board’s Decision’).

7.  The Board found inconsistencies and implausibility in the applicant’s evidence and doubted the credibility of the applicant’s claim of fear of harm from his former girlfriend’s family.  The Board was not satisfied that the applicant faced a real risk of harm if the applicant is returned to India.

V.  Decision of the Judge

8.  The applicant filed a Form 86 and a supporting affirmation on 26 November 2018, but did not identify any ground for seeking relief in either document.

9.  An oral hearing was held before the Judge on 3 May 2022.  The applicant confirmed that he had nothing to add to his Form 86 and supporting affirmation.

10.  Given the applicant’s failure to identify any error of law or irrationality or procedural unfairness in the proceedings before the Board or the Board’s Decision, the Judge did not find any reasonably arguable basis for the intended challenge.

11.  The Judge further noticed that it has been established in the Director’s Decision that the risk of harm in the applicant’s claim, if true, is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India.  As such, there is simply no justification to afford the applicant with non - refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526.

12.  The Judge was not satisfied that there was any real prospect of success in the applicant’s intended application for judicial review and accordingly refused his leave application.

VI.  Grounds of appeal

13.  In the Notice of Appeal filed on 23 June 2022, the applicant claimed that he was ‘not satisfied with’ the Decision because it is ‘away from facts and reality which are related with my case’ and that there is no transparency in the Decision.

14.  In the written submissions filed on 4 July 2022, the applicant made further vague complaints about ignorance of relevant facts and lack of transparency, without any particulars or elaborations.  He also made some vague and unsubstantiated assertions about ‘political influence’ and ‘corrupt environment’ in India.  It is unclear whether these are the matters which he says have been ignored.  In any event, the Director and the Board have considered and rejected similar allegations raised by the applicant before them.

VII.   Our view

15.  In our view, the applicant’s submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing his application.

16.  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 Country of Origin Information 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.

17.  In our view, the applicant’s appeal is devoid of any merits.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person