RE NIRMAL SINGH

CACV 215/2020

[2021] HKCA 606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 215 OF 2020

(ON APPEAL FROM HCAL 218 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 8 January 2021 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 9 November 2020 ([2020] HKCA 920), dismissing the applicant’s appeal from a decision dated 17 June 2020 ([2020] HKCFI 1185) by Deputy High Court Judge Bruno Chan (“Judge”), refusing him leave to apply for judicial review of the decision dated 26 January 2018 (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim (“NRF Claim”).

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA if 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  In seeking leave to appeal to the CFA, the applicant asserted in the notice of motion and affirmation filed on the same date as follows (sic):

“Respected Sir/Madam, I am late for applying due to lock of knowledge and insufficient sources. I hope you will understand my problem and allow me to process further my case. I will be great full your kindness.”

5.  Second, by his written submission lodged on 19 January 2021, the applicant contended as follows (sic):

“My name is NIRMAL SINGH my case no. is CACV 215/2020.I am living as an asylum seeker here in Hong Kong because my life was not save in my own country.

My life will be come so worse if I return to my country at this moment. I am not satisfied with the all decision until now given on my case.

So many things which are related with my case are ignored by them which shows the all decision wasn’t transparent.

The situation of my country is much different as they think because it’s so hard to live and stand there in front of my enemies.

Please help to stay here in Hong Kong until I have problem in my own country.

Torture and deaths are so comman in police custody of innocent people because they don't have any fear from anyone.They just give support to them who give them bribe.

You can see so many examples related with my case in YouTube or in internet that how people like me treated in my own country.

So in that fearful environment it’s not possible for me to go back because its mean iam inviting my death if I return. Even if someone like me willing to file an F.i.R. in police station they direct tell to those powerful people that this named person come here to complain against you.

Police and other law making authorities mostly plying in their hands because they are using their political influence and I don’t have that much strength to fight with them.

Even if someone want to become a witness against them than many time that person may disappear or killed by unknown persons which are hired by them to crush all who like to stand in front of them.

It’s very difficult to get justice in that corrupt environment because everything depend on who you are powerful by money or in political field.

People like me are living under threat due to enemies who are so strong in all the ways.We don't know that when they come and vanish all.

My well wishers back in my country are doing their best to solve my problem and may in future we can reach in some fruitful conclusion. But at this moment it’s not possible for me to go back.

I hope you will give me your kind favour and allow me to stay here in Hong kong until I have problem in my own country .I hope I will get your kind favour.Because it will help me to stay safe and and without any fear.I will be greatfull to you for your kindness towards me.I hope you will understand my problem and allow me to stay here.

Because it will help me to stay save here which will bring peace of mind and safety in my life and this is possible only with your help.”

Discussion

6.  The applicant was admittedly late in making his application for leave to appeal to the CFA, without giving any acceptable explanation for the delay.  In our view, the applicant’s bare assertions of “lack of knowledge” and “insufficient resources” do not justify the delay.

7.  Most importantly, the applicant has not by the aforesaid notice of motion, affirmation or written submission raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

8.  Nor do we see any basis to grant leave under the “or otherwise” limb.

(1)  The bare complaint of dissatisfaction with the decisions made on the NRF Claim and the repetition of the allegation of fear of being tortured or even killed upon return to his home country (which allegation had already been dismissed by the Board as being inconsistent and exaggerated, if not incredible) do not constitute grounds of appeal, properly so called.

(2)  In particular, the applicant has not engaged the reasons we set out the Reasons for Judgment dated 16 November 2020 for dismissing his appeal against the Judge’s refusal of leave for judicial review of the Board’s Decision at all. 

(3)  Not only has the applicant completely ignored those reasons, he has seen fit to repeat in the notice of motion, affirmation and written submission for leave to appeal to the CFA much of the contents of the notice of appeal and written submission that he previously placed before us.

(4)  The proposed appeal to the CFA is utterly devoid of merit.

9.  Neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met.  Accordingly, we dismiss the notice of motion.