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CACV 578/2021
[2022] HKCA 1280
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 578 OF 2021
(ON APPEAL FROM HCAL NO 1553 OF 2018)
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| RE: |
NIRMAL SINGH |
Applicant |
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Before: Hon Au and Chow JJA in Court
Date of Judgment: 1 September 2022
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J U D G M E N T
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Hon Au JA (giving the Judgment of the Court):
1. This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 15 December 2021, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2021] HKCFI 3696).
2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 24 July 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 July 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.
3. On 21 December 2021, the applicant indicated his consent for this appeal to be disposed of on paper. Accordingly, we proceeded to consider this appeal on paper based on the available materials.
Background
4. The applicant is a national of India. He was arrested by the police on 8 December 2015 and was referred to the Immigration Department on 10 December 2015. He claimed that he entered Hong Kong on 8 December 2015. On 11 December 2015, he raised a non‑refoulement claim on the basis that if he returned to India, his brother and his brother’s sons would kill or harm him owing to a land dispute. He also said his wife’s business partners would mentally harass the applicant since he was unable to pay his debt. Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] of the Leave Decision.
5. By a Notice of Decision dated 26 July 2017 (“the Director’s Decision”), the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.
6. On 9 August 2017, the applicant appealed against the Director’s Decision to the Board. The applicant attended the hearing before the Board on 24 May 2018 and gave evidence with the assistance of an interpreter. The Board dismissed his appeal on 24 July 2018. Having assessed the evidence, the Board considered that the level of risk of the applicant being subjected to the requisite ill-treatment if he was refouled to India to be low and that the conflicts as alleged by the applicant were, at their highest, purely personal, private and commercial in nature. The Board also considered that state protection would be available to the applicant. Having assessed the evidence, the Board considered that the applicant had failed to substantiate his claim on the applicable grounds and accordingly, his appeal was dismissed.
The Leave Decision
7. On 6 August 2018, the applicant applied for leave to apply for judicial review against the Board’s Decision. In his supporting affirmation, he only stated that the Board disregarded his dangerous situation.
8. By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [12] ‑ [18] of the Leave Decision:
“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘13 (1).… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’
15. He has submitted no valid ground to assist his application. The Board has reject his evidence on the factual basis of his claim. He therefore has no factual basis in support of his claim.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.
CONCLUSION
18. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.”
The Appeal
9. On 21 December 2021, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:
“THE HIGH COURT DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW AS HE DID NOT FIND ANY ERROR I WANT TO SHOW ERROR.” (sic)
10. Contrary to the directions made by the Registrar of Civil Appeals on 21 December 2021, the applicant did not lodge any written submissions in support of his appeal.
Discussion
11. The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
12. In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.
13. Nowhere in his Notice of Appeal did the applicant identify any error made by the Deputy Judge in the Leave Decision with specific particulars. General assertions of his fear if refouled also do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. As such, there is simply no viable ground of appeal and plainly no basis to disturb the Leave Decision.
14. Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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