MATHRIYE MASAAL KARMJEET SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 409/2019

[2021] HKCA 288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 409 OF 2019

(ON APPEAL FROM HCAL NO 1571 OF 2018)

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J U D G M E N T

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Hon S T Poon J (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 (Kwan VP and S T Poon J) handed down on 13 December 2019 ([2019] HKCA 1397). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge K W Lung on 15 August 2019 ([2019] HKCFI 2038) dismissing the application for 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 24 December 2019 that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance of the direction for the applicant to lodge written submissions or the expiry of the time for complying with the direction.  The applicant failed to lodge written submissions as directed.  It is appropriate for the Court of Appeal to proceed to determine this application on paper.

3.  The applicant is a 28-year-old national of India.  He came to Hong Kong as a visitor on 20 June 2014 and subsequently overstayed.  He was arrested by the police on 3 August 2014 and lodged a non-refoulement claim on 15 August 2014 on the basis that he would be tortured or killed by the family members of his girlfriend Saman as they were opposed to his relationship with her.

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 18 May 2016 and 10 July 2017. His appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board (“the Board”) on 20 July 2018.

5.  He filed a Form 86 on 8 August 2018 to seek leave to apply for judicial review against the decision of the Board. His application was refused by DHCJ K W Lung on 15 August 2019.

6.  On 5 September 2019, the applicant filed a notice of appeal against the decision of DHCJ K W Lung.  His appeal was heard before the Court of Appeal on 10 December 2019 and dismissed on 13 December 2019.  The applicant filed a Notice of Motion on 20 December 2019 for leave to appeal to the Court of Final Appeal.

7.  The applicant stated his grounds of appeal in the Notice of Motion which may be summarized as follows:

(1)  The applicant did not know failure to lodge skeleton submissions would cost him an appeal hearing which he specifically requested for;

(2)  Judges were procedurally unfair.  The applicant does not understand English so his friend helped him to submit judicial review, notice of appeal and written submission but he did not find out any error in the Board’s decision even it had erred in the decision.

(3)  The Director erred in saying that the applicant’s family was unharmed and Saman’s family did not have any real intention to seriously harm or kill the applicant.  Saman’s family did not harm him because they were looking for him.

(4)  The decision also erred about relocation.  It is impossible to relocate in India because the applicant does not have proper skills and it is not easy to find a job and settle in other places.  Even if he relocates to another city, his enemy can still find him.

8.  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.

9.  The applicant has not shown any merits in his intended appeal to the Court of Final Appeal.  Ground 1 is wholly without basis as appeal hearings were actually conducted before the Board and the Court of Appeal. 

10.  Furthermore, his present grounds were not raised in the leave application before the Court of First Instance or in the appeal before the Court of Appeal.  It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

11.  In any event, the applicant failed to demonstrate that the Court of Appeal was wrong in rejecting his appeal.  He has also 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). 

12.  Therefore, the Notice of Motion filed on 20 December 2019 should be dismissed.