RE NAVJOT SINGH

CACV 112/2022

[2022] HKCA 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 112 OF 2022

(ON APPEAL FROM HCAL 427 OF 2019)

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J U D G M E N T

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Hon B Chu J (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Campbell-Moffat J. (“the Judge”) set out in the Form CALL-1 dated 29 March 2022, by which the Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 855).

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 January 2019 (“the Board’s 2^nd Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 March 2017 (“the Director’s 2^nd Decision”) rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of India.  He arrived in Hong Kong on 20 August 2015 and was refused permission to land.  On 21 August 2015, he lodged a non-refoulement claim on the basis that he would be harmed or killed by his enemies from the Bharatiya Janata Party (“BJP”) as he had conflicts with them when he was involved in the village head election campaign of Congress Party in his village.    The factual details of the applicant’s claim were summarised by the Judge at [4] of the Leave Decision.

4.  By a Notice of Decision dated 28 October 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all the then applicable grounds including torture risk[1], BOR3 risk[2] and persecution risk[3].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated. He later appealed to the Board and his appeal was dismissed on 28 January 2016 (“the Board’s 1^st Decision”). 

5.  By the Director’s 2^nd Decision, the Director rejected the applicant’s non-refoulement claim on the basis of BOR2 risk[4]. 

6.  On 11 April 2017, the Board received the applicant’s Notice of Appeal against the Director’s 2^nd Decision. As the deadline for filing his Notice of Appeal to Board was 29 March 2017, the applicant was late for 13 days. As to his reason for delay, he stated that it was because he did not speak or write English and his friend helped him. 

7.  On 24 January 2019, by the Board’s 2^nd Decision, the Board dismissed his appeal.  Having considered the materials before it, the Board considered that the applicant failed to provide good reasons for his delay and in any event, after considering the merits of his claim, the Board considered that the applicant would not face grave human rights breaches after his return to India and did not substantiate his claim.   

The Leave Decision

8.  On 15 February 2019, the applicant applied for leave to apply for judicial review against the Board’s 2^nd Decision. No ground of review was given in his Form 86. In his supporting affirmation, he only stated he was not satisfied with the Board’s 2^nd Decision and he could not go back to his country as his life was not safe. As he did not request an oral hearing, the Judge considered his application on paper. 

9.  By the Leave Decision, the Judge refused to grant leave to the applicant to apply for judicial review.  Her reasons were set out at [10] to [11] of the Leave Decision:

“10. … As for his appeal under BOR2, the applicant was out of time. The Adjudicator applied the relevant legislation applicable to late filing and in accordance with s37ZT of the Immigration Ordinance, Cap 115, considered whether an application for late filing should be allowed. As the applicant had failed to provide any documentary support, the Adjudicator was therefore limited to the papers before her. She applied all relevant legal principles in a fair and just manner providing her reasoning. I cannot fault it.

11.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The Appeal

10.  On 12 April 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculation.” (sic)

11.  Pursuant to the directions given by the Registrar of Civil Appeals on 29 April 2022, the applicant filed his written submissions on 18 May 2022.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that high standards of fairness were required in the determination of a torture claim.  The applicant further contended that the Board ought to have considered matters such as country conditions of the applicant’s country of origin and that the Board failed to scrutinise the Director’s decision.  He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 and contended that the decision maker was under a constitutional duty to act fairly.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case. More importantly, none of his submissions identified any error in the Leave Decision.

12.  We heard the appeal on 6 July 2022.  During the hearing, the applicant had nothing to say. 

Discussion

13.  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].

14.  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. 

15.  Nowhere in his Notice of Appeal or written submissions did the applicant identify any error in the Leave Decision.  Insofar as the allegations made in his Notice of Appeal are concerned, as pointed out by the Judge, his appeal in relation to BOR 2 risk to the Board was made out of time.  The Board had applied all the relevant legal principles under s.37ZT of the Immigration Ordinance, Cap 15 and the relevant case law. There was no procedural unfairness or error of law in the public law sense in her decision. Accordingly, we see no basis to interfere with the Leave Decision. 

16.  In relation to the matters raised in his written submissions, they are general and vague and only related to complaints directed at the the Board. They are also new and not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  More importantly, the applicant failed to demonstrate why the Judge was wrong in the Leave Decision.  The authorities cited by the applicant therefore do not assist his case.  

17.  For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.