RE ABHAYJOT SINGH

CACV 203/2020

[2021] HKCA 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 203 OF 2020

(ON APPEAL FROM HCAL 987/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 23 December 2020, this court (Barma JA and Toh J) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 5 June 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 4 January 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1) I did not failure to lodge the skeleton submission would cost me an oral hearing. I specially requested for one. I relied too much on friends and NGO’s to help me out from this situation bcz I don’t have any’ knowledge about the judicial review system of Hong Kong as I did not get any translation from friends and NGO’s.

2) judges were procedurally unfair in my decision because as I mention before that I don’t have any knowledge about judicial review system in Hong Kong but ia ske da help from one of my friend to submit written submission for me but later I does not work. I requested for the legal aid to provide me a legal adviser to help me out but they refused it.

3) as the judges mention that my aunt have not interaction with police or other department.  As in media can show that India is well develop country but other side have alots corruption in police department that they don’t help to poor people bcz they are unable to provide money to register the FIR and take action against the crime.  My aunts are well riched and they can give money to any department or gangs to get the land from me.  Now the land price is a very higher than before and she will more force to get the land from me and I am unable to get protection from government.  In India have alots of department but if I go to other department to speak out my problem and then they will suggest to go police station and make but as I mention that police will not take action without getting BRIBE.  Other grounds will provide at later date.”

4.  The applicant lodged a written submission in support of the application on 14 January 2021.  The applicant alleged a number of public law errors in the Board’s Decision, such as failure to attain the high standard of fairness and errors in the evaluation of evidence, which were framed in board terms and lacked particulars.  As the alleged errors in the Board’s Decision are not related to any error in our judgment, they are not viable grounds of appeal and it is not necessary to evaluate them in detail.  The applicant also advanced the following grounds against the court:

“Ground standard of review

1) the court wrongly held that it should not apply an intensive or rigorous standard of review in particulars.

A) the court failed to apply the approach to the standard of review identified in risk of torture under part vii c is the immigration ordinance cap 115(torture Risk) under torture risk, the applicant must establish he has substantial ground for believing he will be subject to torture claims if returned to his home state. Those grounds cannot be speculative or theoretical and the risk must be real and personal. The standard proof is a low one. That case is including a common law right or constitutional should be subject to a high level of security.

The case raises important issues engaging the common law right of access to justices.

The court relied on the fact that the decision was predictive and based in part on other applicants cases analysis however that does not detract from the need for strict security in case involving real risk to continued access to justics. A decision the the older court fees based on other applicants case analysis would still be subject to strict security because of the country situation.

My aunt is well rich and they have a connection with the police and gangs with help of their other family member. The land price is much higher then before and she will not leave me until I handover the land to them.  I decided to handover to them half of my land but still they are not agree they want all of my land bcz the price is much higher then before.  But still the senior villagers try to convince her to take the halp of my land but its take time to convince her so give me time to solve my problem.”

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

7.  The “Ground standard of review” in the written submission dated 14 January 2021 is virtually identical to the grounds raised in the written submission dated 31 August 2020 filed for the appeal before us.  As we have held in [15] - [16] of our judgment, those grounds are mostly unintelligible and lack particulars.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

8.  For ground 1 of the Notice of Motion complaining about the lack of an oral hearing despite his express request for one, we note that the applicant was given an oral hearing before this court but his application for leave for judicial review was dismissed by the judge without an oral hearing.  This is because he did not request an oral hearing in the Form 86 or the supporting affirmation (RHC Order 53 rule 3(3)).  This ground is factually incorrect and entirely without merit.

9.  For ground 2 relating to the lack of legal assistance, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15). Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

10.  As for ground 3 based on the alleged danger he will face upon his return and the lack of state protection, we have held in [17] of our judgment that this bare assertion is not a valid ground of appeal by itself.  In any event, the Board has found that he would not be subject to risks upon his return and there is no public law error in the Board’s Decision.

11.  In our view, none of the grounds raised in the Notice of Motion is reasonably arguable before the Court of Final Appeal.

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  For these reasons, the Notice of Motion dated 4 January 2021 is dismissed.