Case Detail

ATWAL RAVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2023] HKCA 166-EN-2023-02-09

ATWAL RAVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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CAMP 32/2022

[2023] HKCA 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 32 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2963 OF 2018)

________________________

BETWEEN
	Atwal Ravinder Singh	Applicant
	and
	Torture Claims Appeal Board / Non refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

________________________

Before:

Hon Kwan VP and Cheung JA in Court

Date of Written Submissions:	12 August 2022
Date of Judgment:	9 February 2023

________________________

J U D G M E N T

________________________

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

1. This is the applicant’s Notice of Motion (dated 2 August 2022) for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan Ag CJHC and Cheung JA) handed down on 24 June 2022 ([2022] HKCA 880). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge P Li dated 19 August 2021[1] refusing to grant leave for the applicant to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 16 August 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction.

3. The applicant lodged his written submissions on 12 August 2022. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

4. The applicant is a national of India. He is 30 years old. He came to Hong Kong as a visitor on 1 January 2013 and was arrested by the police for overstaying on 18 October 2013. He raised his non-refoulement claim the day following his arrest on the basis that he would be harmed or killed by a rival political party, Akali Dal Party (“ADP”).

5. Deputy High Court Judge P Li concluded that the applicant failed to show any reasonable prospect of success in the intended judicial review and refused the leave application on 19 August 2021.

6. The applicant filed an application for extension of time to appeal against the said decision, which was dismissed by the judge on 14 January 2022[2].

7. On 24 January 2022, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 24 June 2022, it was held that there was no prospect of success in the applicant’s intended appeal.

Grounds of appeal

8. The applicant in his Notice of Motion dated 2 August 2022 (filed out of time) stated that he was not satisfied with the result of his non-refoulement claim and therefore wants to go to the Court of Final Appeal.

9. In his written submissions he further expanded:

(1)  the Director of Immigration did not properly consider his application;
(2)  if the applicant returns to his home country, the safety of his life will be in jeopardy; and
(3)  the issue he faces, as with other asylum seekers, is of great interest.

Analysis and disposition

10. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

11. Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

12. The applicant was almost 2 weeks late in filing his Notice of Motion. He did not provide any explanation for the delay, and in his affirmation merely stated, “Please extend time and grant my leave.” This does not constitute any good grounds for the court to grant extension of time for the applicant to file his Notice of Motion.

13. In any event, the Court of Appeal has sufficiently dealt with his grounds in the decision dated 24 June 2022. The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application. Moreover, he has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

14. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 2 August 2022.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 2411

[2] [2022] HKCFI 120

CAMP 32/2022

[2022] HKCA 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 32 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2963 OF 2018)

________________________

BETWEEN
	Atwal Ravinder Singh	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan Ag CJHC and Cheung JA in Court

Date of Written Submissions: 7 February 2022

Date of Judgment: 24 June 2022

___________________

J U D G M E N T

___________________

Hon Kwan Ag CJHC (giving the Judgment of the Court):

1. On 19 August 2021, Deputy High Court Judge P Li refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2. On 14 January 2022, DHCJ Li dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3. On 24 January 2022, the applicant filed the present summons with the Court of Appeal to challenge the decision made by the court. In light of the decision in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3 to 8, we shall treat this as a renewed application for leave to appeal out of time against the decision made by DHCJ Li dated 19 August 2021.

4. The applicant is a national of India. He is 30 years old. He came to Hong Kong as a visitor on 1 January 2013 and was arrested by the police for overstaying on 18 October 2013. He raised his non-refoulement claim on the basis that he would be harmed or killed by a rival political party, Akali Dal Party (“ADP”).

5. By a Notice of Decision dated 2 November 2017, the Director rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk [5] and persecution risk[6].

6. The applicant appealed against the Director’s Notice of Decision to the Board and attended the hearing before the Board on 9 August 2018. He gave evidence in support of his claims. The Board did not accept the applicant’s credibility as there were inconsistencies and discrepancies in his evidence. In particular, the Board found that the applicant was embellishing his evidence and rejected that he was targeted by the ADP. In any event, the Board found no basis that the applicant would face any risk of torture or persecution in India if he is returned there. The Board therefore dismissed his appeal on 20 December 2018.

The judge’s decision

7. On 24 December 2018, the applicant applied for leave to apply for judicial review against the decision of the Board. He did not supply any grounds in support of his application as he only annexed the decision of the Board in his supporting affirmation. As the applicant did not request for an oral hearing, DHCJ Li considered the application on paper.

8. The judge considered there is no error of law or procedure. The judge was of the view that the Board’s decision was reasonable and accepted the Board’s findings. Thus, the judge concluded that the intended judicial review has no reasonable prospect of success and dismissed his leave application on 19 August 2021.

Grounds of appeal

9. The applicant did not provide any grounds of appeal in his summons save that he stated that he wishes to reject the findings of the judge. As for his supporting affirmation, he reiterated his dangerous situation in India. In his submissions, he cited a research article, and purported to quote from a survey and a report by international organizations on the human rights situation in general in India, which were not raised in the court below.

Analysis and disposition

10. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of success of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

11. Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), the applicant may appeal to the Court of Appeal against the judge’s order refusing leave within 14 days after such refusal. The judge’s order was made on 19 August 2021. The applicant took out a summons in the court below on 15 September 2021 and was two weeks late. His reason for the delay was that he only learned of the decision on 9 September 2021.

12. The explanation for the delay is not acceptable. As the courts have stated in the past, it is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran[2018] HKCA 439, at [15]).

13. As the applicant’s delay is inexcusable, he must show a real prospect of success on merits: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

14. In assessing the merits of the intended appeal, the court would adopt the legal principles which have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

15. 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 decision of the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16. In the present case, the applicant simply made bare assertions against the findings of the judge. He did not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for him to bring judicial review. The materials he purported to quote in relation to the human rights situation in general in his home country do not assist him, as the Board rejected his evidence owing to important inconsistencies and the judge agreed with the decision of the Board that he failed to prove the primary facts of his claim. The applicant further did not provide any particulars to show that the Board failed to apply high standards of fairness or acted in a procedurally unfair manner. In any event, the applicant failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

17. For the above reasons, there is no prospect of success in the applicant’s intended appeal. We refuse to exercise our discretion to grant extension of time to appeal against the judge’s decision of 19 August 2021 and dismiss the summons filed on 24 January 2022.

(Susan Kwan)
Acting Chief Judge
of the High Court

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 2411

[2] [2022] HKCFI 120

[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.