RE AMRIT PAL SINGH

CACV 336/2022

[2023] HKCA 256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 336 OF 2022

(ON APPEAL FROM HCAL NO. 2139 OF 2018)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  On 22 November 2022, this court handed down a judgment ([2022] HKCA 1734) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 12 August 2022 refusing him leave to apply for judicial review.

2.  On 17 January 2023, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal. He has also put in a written submission to support the application.

3.  Having considered the Notice of Motion, affirmation and written submission, 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 has been set out in our judgment. We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that an 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) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s notice of motion is late by four weeks, which is a significant delay. The applicant stated in his affirmation that he was not aware of the deadline for filing the notice of motion. While we note that the applicant is unrepresented and may not be familiar with the judicial process, in the absence of elaborations as to what efforts he had made to prosecute the application, we do not find the delay has been satisfactorily explained.

7.  We turn next to consider the merits of the intended application. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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 that the authorities relied on old source of news which is also not officially recognized, and should have taken into account the real procedural unfairness throughout the case. The public policy of disposing of non-refoulement claims as quickly as possible should be put aside.

9.  In his written submission, the applicant made the following additional points

(1)  His case has been determined unfairly.

(2)  There should be a proper and fair mechanism allowing unrepresented litigants to understand more about their case. Without knowing thoroughly how the case was determined, it was not easy for him to appeal.

(3)  He was never provided with language and legal assistance. Due to limited resources and language capability, it was burdensome for him to appeal. The failure to provide proper assistance is procedurally unfair.

(4)  It could not be said that the assistance would be of no use if it was not even granted in the first place.

10.  The matters put forward by the applicant do not amount to viable grounds for the intended appeal. Importantly, he has failed to identify any question of great general and public importance, as required by section 22(1)(b) of the Ordinance. Further, the complaints about procedural unfairness and lack of language and legal assistance were never raised before the Judge nor in the appeal. It is not open to the applicant to raise arguments that are fact-sensitive at this late stage.

11.  We also do not 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, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.

The applicant, unrepresented, acting in person.

CACV 336/2022

[2022] HKCA 1734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 336 OF 2022

(ON APPEAL FROM HCAL NO. 2139 of 2018)

________________________

________________________

________________

J U D G M E N T

________________

Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 12 August 2022 refusing him leave to apply for judicial review ([2022] HKCFI 2497). The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 2 October 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 March 2018 rejecting his non-refoulement claim.

2.  The applicant consents to the appeal being disposed of on paper without an oral hearing.   

3.  The applicant is an Indian national aged 37. He arrived into Hong Kong on 22 March 2014 and was given permission to remain as a visitor until 5 April 2014. He overstayed. On 29 August 2016, he surrendered to the Immigration Department and raised a non-refoulement claim.

4.  The applicant’s claim is based on his fear of being harmed or killed by his cousin (“Jassi”) and the people of Shiromani Akali Dal (“SAD”) over a land dispute. The applicant’s case was set out in detail in the Director’s decision at [6] and also the Board’s decision at [3] to [20], and summarised by the Judge in [2] to [6] of the Form CALL-1 dated 12 August 2022.  

5.  In gist, the applicant’s father and Jassi’s father inherited a piece of farm land from the applicant’s grandfather. The land was divided into two plots, with a divider in between. Jassi, who is an active member of SAD, together with his people had occupied the plot belonging to the applicant’s father. After the applicant and his father tried to regain possession of their plot, Jassi and his people threatened to attack them. Then one day in February 2014, the applicant was attacked by Jassi and his people when he was on his way home. He was hospitalised for treatment. Fearing for his personal safety, the applicant left his village after his discharge from the hospital and later departed for Hong Kong.

6.  By a Notice of Decision dated 12 March 2018, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].

7.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 15 June 2017, during which the applicant answered questions put by the Board. By its decision dated 2 October 2018, the Board dismissed the appeal. In short, the Board found the applicant’s case to be illogical and rejected his evidence as incredible having regard to its inherent implausibility and the lack of proper evidential basis. The Board further considered that, even on the applicant’s case, it was a private dispute with no political involvement, and there is no basis to support any risk of harm from SAD. The Board was also satisfied that internal relocation options and state protection were reasonably available, which would negative or reduce any risk that the applicant may face. The Board concluded that the applicant failed to establish any of the appliable grounds for affording non-refoulement protection.      

8.  The applicant filed his Form 86 together with a supporting affirmation on 8 October 2018 to seek leave to apply for judicial review against the decision of the Board. The Form 86 did not set out any ground for seeking relief. The supporting affirmation stated that the applicant was not satisfied with the Director’s decision, and it was not safe for him to go back to his home country.

9.  The Judge dealt with the application on paper. By his decision of 12 August 2022, the Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success. He gave his reasons given at [12] to [14] of the Form CALL-1 as follows:

“12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.

13. Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of India, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim under all the applicable grounds.”  

10.  In the Notice of Appeal filed on 22 August 2022, the applicant stated the following as his grounds of appeal:

“I am not satisfied with the Decision because it’s away from facts and reality which are related with my case. There is no transparency in these Decision. Please accept my application and allow me to process further my case.”

11.  The written submission stated that (1) many things related to the applicant’s case were ignored which showed the decision was not transparent, (2) the applicant’s life would be worsened if he were to return to his country, where the situation was very different from what people think, and the applicant really has danger there; (3) people play into the hands of the police and other authorities because of their political influence, and it is difficult to get justice in such corrupt environment; and (4) people are doing their best to help to solve the applicant’s problem. The applicant asked that he be allowed to stay in Hong Kong until his problem is solved.

12.  For the following reasons, we are of the view that the matters put forward in the notice of appeal and the written submission are unarguable: 

(1)  The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below. The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(2)].  

(2)  The applicant has only made vague and general complaints that the decision against him had ignored facts in his case. However, he has not particularised or pinpointed what are the facts or matters that had not been considered and how they would impact on the assessment and determination of his claim and application for judicial review.

(3)  Evaluation of evidence and assessment of risks of harm are matters for the Board, who is the primary decision maker. In the applicant’s case, the Board had rejected his evidence and that internal relocation was reasonably open to him. The applicant has not identified any error or advanced specific challenge to these findings. In the circumstances, his assertion that he would be in danger if refouled to India cannot stand.

(4)  We have separately considered the decision of the Board. Like the Judge, we see no proper basis to interfere with its findings and conclusion.

13.  For the above reasons, the appeal has no merits. There is no basis to disturb the Judge’s refusal to grant leave to apply for judicial review. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.