Case Detail

CAMP 64/2022

[2023] HKCA 165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 64 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1895 OF 2018)

________________________

BETWEEN
	Baljinder 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 Submission:	22 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 8 August 2022) for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 29 July 2022 ([2022] HKCA 1103). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dated 16 December 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 directed that the applicant shall lodge written submissions on or before 22 August 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing unless the Court directed otherwise.

3. The applicant lodged his written submissions on 22 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 an Indian national. He entered Hong Kong illegally on 12 December 2015 and was arrested by the police the following day. He lodged his non-refoulement claim on 15 December 2015 on the basis that he will be ill-treated or killed by his creditor and his men if he returns to India.

5. Deputy High Court Judge Lung concluded that the applicant failed to show any reasonable prospect of success in the intended judicial review and dismissed the leave application on 16 December 2021.

6. The applicant filed an application for extension of time to appeal against the said decision, which was dismissed by Deputy High Court Judge Lung on 28 January 2022.

7. On 21 February 2022, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 29 July 2022, the Court held that there was no prospect of success, let alone real prospect of success, in the applicant’s intended appeal.

Grounds of appeal

8. The applicant in his Notice of Motion dated 8 August 2022 stated that he was not satisfied with the result of his non-refoulement claim and therefore wants to go the Court of Final Appeal. In his written submissions he further expanded:

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

Analysis and disposition

9. 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.

10. The Court of Appeal has sufficiently dealt with the applicant’s grounds in the decision dated 29 July 2022. The applicant has 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).

11. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion dated and filed on 8 August 2022.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 3703

CAMP 64/2022

[2022] HKCA 1103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 64 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1895 OF 2018)

________________________

BETWEEN
	Baljinder 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 Submission: 26 April 2022

Date of Judgment: 29 July 2022

________________________

J U D G M E N T

________________________

Hon Kwan VP (handing down the Judgment of the Court):

1. On 16 December 2021, Deputy High Court Judge K W Lung 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 28 January 2022, the applicant’s application for extension of time to appeal against the said decision was dismissed by the judge as there is no realistic prospect of success in the intended appeal[2].

3. On 21 February 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal.

4. The applicant is a national of India. He is 33 years old. He entered Hong Kong illegally on 12 December 2015 and was arrested by the police on the following day. He lodged his non-refoulement claim on 15 December 2015 on the basis that he will be ill-treated or killed by his creditor and his men if he returns to India.

5. By a Notice of Decision dated 30 April 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[3], BOR 2 risk [4], BOR 3 risk[5] and persecution risk[6].

6. The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 26 July 2018. The Board held that the applicant did not have a well-founded fear of being persecuted for any of the Convention reasons as his problems with his creditor arose out of a private loan and land dispute and the creditor is not a state actor. The Board further considered that the alleged ill-treatment was insufficient to constitute torture. Besides, the Board found there is no real chance that the creditor would kill the applicant as the applicant’s father is still alive and farming on the subject farmland. In addition, although the Board accepted the applicant’s assertions regarding the failure on the part of the police at the Fatehgarh police station, the Board considered this is not sufficient to show that the police of the state of Punjab or in India was unable or unwilling to provide reasonable and effective protection to the applicant, nor is it sufficient to show acquiescence. The Board also held that internal relocation in India is a reasonable and practicable option for the applicant. Thus, the Board decided that the applicant failed to establish his non-refoulement claim on any of the applicable grounds and dismissed the appeal on 23 August 2018.

The judge’s decision

7. On 10 September 2018, the applicant filed a Form 86 and supporting affirmation to apply for leave to bring judicial review against the decision concerning his non-refoulement claim. The applicant only stated that the decision is unfair and unreasonable in his supporting affirmation, without stating any specific grounds for his intended challenge.

8. DHCJ K W Lung directed the Form 86 be amended to the effect that the Board is the proposed respondent and the Director is the interested party. The judge considered the leave application on paper as the applicant did not request for an oral hearing. He held that there is no evidence to show that the Board erred in the finding of facts or the application of laws in the applicant’s case. He concluded that the applicant failed to show that any reasonable prospect of success in the intended judicial review and dismissed the leave application on 16 December 2021.

Grounds of appeal

9. The applicant stated in his written submissions he found many errors that the court did not find and requested the Court of Appeal to check his points and grant him leave.

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 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 16 December 2021. The applicant took out his summons in the court below on 6 January 2022. He was late for one week. He explained that he was late because he did not receive the High Court judgment.

12. The decision of DHCJ K W Lung was sent by post on 16 December 2021 to the applicant’s address as stated in his notice of change of address filed on 12 November 2019[7]. It is noted that the respective addresses stated in his application for extension of time filed with the court below on 6 January 2022[8] and in his present application filed on 21 February 2022[9] are different from the one stated in his notice of change of address. However, he has not filed a new notice of change of address informing the court of his new address. 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). Under these circumstances, the applicant’s delay is not justifiable. Therefore, the applicant must show a real prospect of success on the merits to obtain an extension of time to appeal: Secretary for Justice v Hong Kong Yaumatei Ferry Co Ltd [2001] 1 HKC 125.

13. 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.

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 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.

15. The applicant’s grounds and submissions in the present application are just bare assertions without particulars or evidence in support. In particular, he submitted that he has found errors but without identifying what they are and did not give further elaboration. He failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16. For the above reasons, there is no prospect of success, let alone real prospect of success, in the applicant’s intended appeal. We refuse to exercise our discretion to extend time to appeal against the judgment of 16 December 2021 and dismiss the renewed application for extension of time filed on 21 February 2022.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 3703

[2] [2022] HKCFI 193

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

[5] 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).

[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.

[7] At 141 to 145 Nam Cheong Street, Shamshuipo

[8] At 99 How Ming Street, Kwun Tong

[9] At 473 Un Chau Street, Shamshuipo

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

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