CACV 358 /2023, [2024] HKCA 1099
On appeal from [2023] HKCFI 2718
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 358 OF 2023
(ON APPEAL FROM HCAL NO 1212 OF 2019)
________________________
BETWEEN
| | Ranjit 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 Au JA in Court |
| Date of Judgment: | 26 November 2024 |
________________________
J U D G M E N T
________________________
Hon Kwan VP (giving the Judgment of the Court):
1. On 7 November 2023, Deputy High Court Judge K W Lung refused to extend time for the applicant to seek leave to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 14 November 2023.
2. The applicant is a national of India. He entered Hong Kong as a visitor on 22 March 2007 and subsequently overstayed. He was arrested by the police for several criminal offences on 5 July 2007. He lodged a torture claim on 19 March 2008. His claim was made on the basis that, if refouled, he would be harmed or killed by his wife’s cousins (“the cousins”) due to a family dispute. His torture claim was treated as a non-refoulement claim after the commencement of the Unified Screening Mechanism.
The decisions of the Director and the Board
3. By a Notice of Decision dated 26 January 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk[2], BOR 3 risk[3] and persecution risk[4].
4. In light of the absence or low intensity and frequency of the ill-treatment from the cousins and their people, the Director assessed that the risk of harm upon the applicant’s return to India is unlikely to materialize. The Director also considered that the applicant’s problem with the cousins is a private family dispute, which originated from his maltreatment of his wife. There is nothing to show that the cousins were acting in any official capacity when they harmed the applicant. Moreover, the Director also held that the availability of state protection and internal relocation alternatives in India further lowers or negates the perceived risk.
5. The applicant’s appeal against the Director’s decision was heard before the Board on 3 December 2015. Taking into account the long lapse of time of the assault, the fact that the applicant was only assaulted by the cousins on one occasion and that he did not sustain any serious injuries in the incident, the Board considered there is no real chance the applicant would be subjected to ill-treatment by the cousins if he is refouled to India. The Board found that the applicant failed to establish his claim on torture risk, BOR 3 risk and persecution risk and rejected the appeal on 8 June 2016.
6. On 12 January 2017, the Director invited the applicant to submit additional facts relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk,[5] in case he had omitted any relevant facts before. By a Notice of Further Decision dated 3 February 2017, the Director rejected the applicant’s claim on all applicable grounds including on BOR 2 risk, in the absence of response from him to the said invitation. The applicant did not appeal against the Director’s further decision to the Board.
The intended judicial review
7. The applicant filed a Form 86 and an affirmation on 6 May 2019 to seek leave to apply for judicial review against the decision of the Board. He stated that his life is still in danger in India.
The judge’s decision
8. DHCJ K W Lung dealt with the application on paper as the applicant did not request for an oral hearing. The applicant was late for about 2 years and 7 months in taking out the leave application and did not provide any explanation for the delay. The judge found the ground advanced by the applicant is not valid to challenge the Board’s decision. He further held there is no error of law or procedural unfairness in the Board’s decision. As the applicant failed to show any realistic prospect of success in his intended judicial review, the judge refused to extend time for the application and dismissed the leave application on 7 November 2023.
Grounds of appeal
9. In the Notice of Appeal filed on 14 November 2023, the applicant stated that as the court did not find any error of the adjudicator and he did not agree with the court’s decision, so he brought an appeal.
10. The applicant has submitted a written consent to the appeal to be disposed of on paper without an oral hearing. Directions were given by the Registrar of Civil Appeals on 14 November 2023 requiring the applicant to lodge written submissions. The applicant lodged written submissions as directed.
11. In his written submissions, he contended that the Board made many errors but the court could not find the errors. He also submitted that the court did not consider his arguments and did not give him an oral hearing, that there is no justice and the judgment is wrong.
Legal Principles
12. The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
13. 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 determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
Analysis and disposition
14. The judge was entitled to consider the applicant’s leave application on paper without an oral hearing pursuant to Order 53 Rule 3(3) of the Rules of the High Court (Cap 4A), as the applicant did not request for a hearing in his Form 86. There is nothing to show any injustice in the judge’s decision.
15. The applicant’s grounds of appeal and submissions are just bare assertions without any particulars or evidence in support. He did not identify any specific errors in the Board’s decision in the leave application and in this appeal. There is no basis for him to complain that the court did not find any error of the Board. He failed to show that the judge has made any mistake in the decision.
16. As the contentions of the applicant are entirely without merit, we therefore dismiss the appeal.
| (Susan Kwan) | (Thomas Au) |
| Vice President | Justice of Appeal |
The Applicant (Appellant), acting in person
[1] [2023] HKCFI 2718
[2] 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.
[3] 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).
[4] 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.
[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).