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CACV 102/2018
[2018] HKCA 675
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 102 OF 2018
(ON APPEAL FROM HCAL 426/2017)
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| RE: |
BALJINDER SINGH |
Applicant |
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| Before: Hon Chu JA, Barma JA and Poon JA in Court |
| Date of Judgment: 10 October 2018 |
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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 10 August 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 29 March 2018 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 a decision 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 21 August 2018, for leave to appeal to the Court of Final Appeal. The applicant stated in his notice of motion that:
“1. I stand by what I said regarding to the state protection and risk of harm.
2. The Judge have wrongly exercise their case management power. One of my argument that “there was no need for the adjudicator to go into whether there was State Protection or State acquiescence because of the Board finding that there was no risk of harm to application if refouled. And the Board has accepted “there only be a remoter or speculative risk and therefore not a real risk the applicant will face harm from the Punjab police”.
3. Furthermore, just because I could have my court documents written in English, it merely meant that I could seek help elsewhere which was not available to me earlier…”
4. In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 4 September 2018. In his written submission, the applicant submitted that:
(1) While the applicant was able to submit documents prepared in English, this does not mean he had language assistance at all times.
(2) The applicant is concerned that he will be subject to the same inhumane treatment as his grandfather and father.
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 his notice of motion and written submission.
6. The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave 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 in accordance with 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 in his notice of motion and his written submission.
7. At [10] of the judgment, this court concluded that the Board was right in holding that it was unnecessary to assess state protection or state acquiescence. As for the ground based on language assistance, we observe that the applicant was assisted by an interpreter[2] at the Board hearing and the leave hearing. The applicant had no problem in following the court’s direction and he was able to prepare documents in English. He had apparently received language assistance from different sources when he needed it. The applicant is unable to point to any prejudice he suffered as a result of the alleged lack of language assistance. Lastly, as for the alleged threat of inhumane treatment towards the applicant, this court has already held that the Board was right in concluding that the risk to the applicant was remote or speculative and not a real risk (see [10] of the judgment).
8. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).
9. For these reasons, the notice of motion dated 21 August 2018 is dismissed.
| (Carlye Chu) |
(Aarif Barma) |
(Jeremy Poon) |
Justice of Appeal
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Justice of Appeal
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Justice of Appeal
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The applicant acting in person
[1] See [2018] HKCA 479
[2] At [7] of the Board’s Decision dated 13 July 2017, the Board said that the Board discussed with the applicant during the hearing. Presumably, this was done with the help of an interpreter.
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