KARMBIR SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 277/2019

[2019] HKCA 1401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2019

(ON APPEAL FROM HCAL NO 1573 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 18 October 2019 ([2019] HKCA 1136) dismissing his appeal against the decision of Deputy High Court Judge K W Lung on 13 June 2019 ([2019] HKCFI 1537) refusing leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 31 October 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant has lodged his written submission on 12 November 2019.  It is appropriate to determine this application on paper accordingly.

3.  By a Notice of Decision dated 3 November 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

4.  The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 3 August 2018.

5.  He filed a Form 86 on 8 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by Deputy High Court Judge K W Lung on 13 June 2019.

6.  The applicant filed a Notice of Appeal against the decision of the judge on 24 June 2019.  This was dismissed by the Court of Appeal on 18 October 2019.  He filed a Notice of Motion on 29 October 2019 for leave to appeal to the Court of Final Appeal.

7.  The applicant stated the following grounds of appeal in the Notice of Motion:

(1) The judges were wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director;

(2) The decision is biased and adopted a formula approach which is unlikely to have assessed fairly the danger to his life and is clearly calculated to reject his claim;

(3) There is some error in law in the decision.  The decision maker just relied on the country of origin information (“COI”) and his previous facts which were in favour on rejecting his claims.  Actual life occurs in different situation rather than as mentioned in the COI.  Officers and courts prefer to ignore the overwhelming evidence of the violence towards minorities searching for silver lining;

(4) The judge did not apply the law properly.

8.  In his written submissions, he submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  He also stressed that high standards of fairness are required in the determination of a torture claim as the decision has a significant effect on the applicant’s claim.

9.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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 applicant’s grounds of appeal are just bare assertions without particulars or evidence in support.  He has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal.  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.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.