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CACV 20/2022
[2022] HKCA 516
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 20 OF 2022
(ON APPEAL FROM HCAL 239 OF 2015 and HCAL 722 OF 2019)
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BALJIT SINGH |
Applicant |
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TORTURE CLAIMS APPEAL BOARD |
Putative Respondent |
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DIRECTOR OF IMMIGRATION |
Putative Respondent / Interested Party |
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Before: Hon Chow JA and Wong J in Court
Date of Judgment: 17 May 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“the Judge”) on 30 December 2021refusing to grant leave to the Applicant to apply for judicial review in HCAL 239/2015 and HCAL 722/2019 (consolidated). In HCAL 239/2015, the intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 3 March 2015. In HCAL 722/2019, the intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 10 January 2017.
2. The Applicant has not filed any skeleton argument in support of the appeal despite paragraph 3 of the directions of the Registrar of Civil Appeals contained in a letter to the Applicant dated 9 February 2022. Accordingly, the Applicant is deemed to have waived his right for an oral hearing and elected to have his appeal disposed of on paper, and the present appeal is determined on the basis of the written materials before this court, as stated in paragraph 4 of the said letter.
BACKGROUND
3. The Applicant is a national of India. He arrived in Hong Kong on 11 July 2014. When he was refused entry by the Immigration Department, he raised a non-refoulement claim on the basis that if he returned to India, he would be harmed or killed by the local supporters of a rival political party. He was subsequently released on recognizance pending the determination of his claim. Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.
4. By a Notice of Decision dated 1 September 2014 (“the Director’s First Decision”), the Director dismissed the Applicant’s non-refoulement claim on the following grounds: torture risk[1], BOR 3 risk[2], and persecution risk[3].
5. The Applicant appealed the Director’s First Decision to the Board. On 3 March 2015, the Board dismissed the appeal and confirmed the Director’s First Decision (“the Board’s Decision”).
6. On 3 December 2015, the Applicant filed a Form 86 in HCAL 239/2015 seeking leave to apply for judicial review of the Board’s Decision. The hearing of the leave application originally fixed before Fung J was adjourned at the Applicant’s request pending the assignment of counsel by the Legal Aid Department.
7. Meanwhile, on 22 December 2016, the Director on his own initiative invited the Applicant to submit additional facts which might be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[4]. In the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 10 January 2017 rejected the Applicant’s non-refoulement claim based on BOR 2 risk (“the Director’s Further Decision”).
8. The Applicant did not appeal the Director’s Further Decision to the Board. On 14 March 2019, the Applicant filed another Form 86 in HCAL 722/2019 seeking leave to apply for judicial review of the Director’s Further Decision.
THE JUDGE’S DECISION
9. With the Applicant’s consent, the Judge directed that the two leave applications in HCAL 239/2015 and HCAL 722/2019 be consolidated for hearing and be dealt with together (see Form CALL-1 at §13).
10. The Judge found that the Applicant was late for both applications, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A, requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers there is good reason for extending the period within which the application shall be made (see Form CALL-1 at §14). The application in HCAL 239/2015 was 6 months late and the application in HCAL 722/2019 was almost 2 years late (see Form CALL-1 at §15, §28).
11. Regarding the merits of the application in HCAL 239/2015, having considered the decisions of the Director and the Board with rigorous examination and anxious scrutiny, the Judge did not find any error of law or procedural unfairness in their decisions nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim (see Form CALL-1 at §22). The Judge was not satisfied that there was any realistic prospect of success in the Applicant’s intended application for judicial review. Accordingly, the Judge refused the Applicant’s leave application (see Form CALL-1 at §27).
12. As for HCAL 722/2019, the Judge considered that the Applicant should have brought an appeal to the Board against the Director’s Further Decision first before applying to the court for leave to apply for judicial review. As such, the leave application for his intended challenge of the Director’s Further Decision was premature and procedurally incorrect, and was therefore dismissed (see Form CALL-1 at §30).
THIS APPEAL
13. In his Notice of Appeal dated 10 January 2022, the Applicant did not put forward any proper ground of appeal. He merely requested the court to save his life, and asked to be put on “travel alert” because his life was in danger and he would be harmed or killed if he were to return to India.
DISCUSSION
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 judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).
15. The Applicant has not pointed to any specific errors in the Judge’s decision dated 30 December 2021, or raised any viable grounds of appeal against the Judge’s decision.
16. The Applicant’s appeal has no merits, and is accordingly dismissed.
(Anderson Chow)
Justice of Appeal
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(Albert Wong)
Judge of the Court of
First Instance
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The Applicant, unrepresented
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
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