HARVINDER SINGH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 374/2020

[2021] HKCA 544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 374 OF 2020

(ON APPEAL FROM HCAL 542/2018)

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J U D G M E N T

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

1.  On 10 August 2020, Deputy High Court Judge Bruno Chan (“the Judge”) dismissed the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 20 July 2016. By that decision, the Director refused to reopen the Applicant’s previously withdrawn non-refoulement claim.

2.  The application for judicial review was filed on 3 April 2018.  Before lodging that application, the Applicant had appealed to the Torture Claims Appeal Board (“the Board”) on 22 August 2016 against the decision of Director of 20 July 2016.  Subsequently, oral hearing was held on 9 June 2017.  The Board allowed the appeal on 20 May 2019 and the Applicant’s non-refoulement claim was re-opened. 

3.  The Applicant failed to allude to these developments in his Form 86 and his affirmation in support.  The Court was only informed of such developments by the Board on 5 November 2019.

4.  In light of such developments, the Judge dismissed the application for judicial review. Obviously, the Director’s decision of 20 July 2016 had been overtaken by the Board’s decision of 20 May 2019: see Re Moshsin Ali [2018] HKCA 549.

5.  On 17 August 2020, the Applicant filed a Notice of Appeal against the Judge’s decision.  On the same day, the Applicant agreed in writing that the appeal could be heard by 2 judges.

6.  In his Notice of Appeal, the Applicant’s stated grounds of appeal were that the decision departed from the facts and reality related to his case, and that there was no transparency in the decision.  In so saying, it is not clear if the Applicant was referring to the decision of 20 July 2016 or some other decisions.

7.  The Applicant did not seem to challenge the Judge’s finding that the Director’s decision had been reversed by the Board or his conclusion that the judicial review is unnecessary.

8.  After reading the Notice of Appeal, on 2 November 2020 the Registrar of Civil Appeals (“RCA”) directed the Applicant to state in writing his reasons for not having the appeal dismissed.

9.  The Applicant lodged written submissions on 7 December 2020.  In his submissions, the Applicant referred to his personal predicament and the basis for his non-refoulement claim.  However, he did not address the fact that his appeal against the decision of 20 July 2016 to the Board was successful and his claim had been re-opened accordingly.

10.  In a letter dated 18 January 2021, Senior Government Counsel acting for the Director informed the Court that after the Applicant’s non-refoulement was re-opened, the Director had considered and rejected the same on 29 July 2019.  The Applicant appealed to the Board and the Board dismissed his appeal against the substantive decision on 2 April 2020. 

11.  These later decisions were not the decision subject to the present application for judicial review.  The Form 86 in this judicial review was filed long before these later decisions and in it the Applicant only challenged the decision of 20 July 2016. Therefore, they fall outside the scope of this appeal. 

12.  In the circumstances, this appeal is clearly misconceived. Because the Board’s decision of 20 May 2019 had overtaken the decision of the Director of 20 July 2016, the court would not grant leave to review the decision of 20 July 2016.  The Judge was plainly right in dismissing the application for leave for judicial review.

13.  If the Applicant wishes to challenge the later Board decision of 2 April 2020, he had to make a new application for judicial review in respect of the same in the Court of First Instance and seek extension of time to enable him to do so.  What he cannot do is to rely on his intended challenge to that later decision in the present appeal since we are not concerned with the Board decision of 2 April 2020.  This appeal was brought against the judgment of 10 August 2020 which only focused on the decision of 20 July 2016.

14.  For these reasons, this appeal is struck out as an abuse of process and dismissed accordingly.