|
CACV 31/2022
[2022] HKCA 533
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 31 OF 2022
(ON APPEAL FROM HCAL 1491 OF 2021)
_____________________
| BETWEEN |
|
|
| |
SINGH HARBANS |
Applicant |
| |
and |
|
|
TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
| |
DIRECTOR OF IMMIGRATION |
Putative Interested Party |
_____________________
Before: Hon Chow JA and Wong J in Court
Date of Hearing: 19 April 2022
Date of Judgment: 17 May 2022
_________________
J U D G M E N T
_________________
Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order made by Deputy High Court Judge K W Lung (“the Judge”) on 5 January 2022 refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 14 September 2021, whereby the Board confirmed the Applicant’s withdrawal of his appeal against the decision of the Director of Immigration (“the Director”) dated 26 January 2021.
BACKGROUND
2. The Applicant is a national of India. He entered Hong Kong illegally in January 2020 and was arrested by the police in September 2020. He lodged a non-refoulement claim on 17 October 2020 on the basis that, if refouled, he would be harmed or killed by his creditor because he was unable to repay a loan. Details of the Applicant’s claim have been summarised by the Judge at §§5-6 of the CALL-1 Form.
3. By a Notice of Decision dated 26 January 2021, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s decision to the Board on 4 February 2021. However, on 22 August 2021 and 5 September 2021, the Applicant requested the Board to “close [his] torture claim case…” so that other proceedings relating to his suspected offences could proceed. On 14 September 2021, the Board wrote to the Applicant stating that, since the withdrawal of the appeal/petition was sought on his own free will and he understood the consequences of the withdrawal, the Board granted the Applicant’s application to withdraw his appeal/petition, and thus the Director’s decision stood (“the Board’s Decision”).
THE JUDGE’S DECISION
5. On 26 October 2021, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In his affirmation in support of the application, he said that he was not satisfied with the Board’s Decision and it was still dangerous for him to go back to India(see Form CALL-1 at §12).
6. In his decision dated 5 January 2022, the Judge considered that the issue before him was whether the Board’s Decision in accepting the Applicant’s application for withdrawing his appeal was subject to judicial review. The Judge found that it was apparent that the Applicant made the application to withdraw his appeal on his own volition (see Form CALL-1 at §14).
7. Having referred to Re Das Purnima Rani [2019] HKCA 669, the Judge found that the Applicant did not have any valid ground to challenge the Board’s Decision (see Form CALL-1 at §§15-16). The Judge was not satisfied that there was any realistic prospect of success in the Applicant’s intended application for judicial review.
8. Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed the Applicant’s leave application.
THIS APPEAL
9. In his Notice of Appeal dated 13 January 2022, the Applicant requested for an order to set aside the Judge’s order dated 5 January 2022. The Applicant alleged that he had been told by his case officer to close his “torture claims appeal” first after which he could be released from Stanley Prison. He also said that he was uneducated and just signed the documents that he was given.
10. In his 5-page written submissions dated 21 March 2022, the Applicant stated that he had been advised by an interpreter and the District Court Judge to withdraw his application to the Board, after which he would be sentenced and released from prison. He repeated that he was an uneducated person and would like another chance. He also provided a definition of asylum, complained that the Adjudicator refused his appeal without reason, and reiterated that his life would be in great peril if he went back to India.
11. At the hearing of this appeal on 19 April 2022, the Applicant repeated that he was illiterate, and had been told that he should withdraw his appeal/petition to the Board first so that he could be released from prison, and requested that he be permitted to re-open his case.
DISCUSSION
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. The court’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).
13. In the proceedings below, the Applicant did not complain, in either the Form 86 or in his Affirmation dated 26 October 2021, that he was misled into withdrawing his appeal to the Board, or that he did not understand the consequence(s) of withdrawing the appeal. In the Form 86, the Applicant did not provide any ground for judicial review. In his Affirmation dated 26 October 2021, he merely stated that he was not satisfied with the Board’s Decision and he could not go back to India because his life was still in danger over there. In his affirmation filed for the purpose of the present appeal dated 13 January 2022, he also did not make any complaint about the withdrawal of his appeal to the Board, but merely repeated that his life would be in danger if he returned to his home country.
14. No reason has been given by the Applicant for not raising the ground that he had been advised by his case officer, or an interpreter, or the District Judge to withdraw his appeal to the Board. His allegations in his Notice of Appeal and written submissions are inconsistent, and are no more than bare assertions. In the circumstances, we do not consider that it is open to the Applicant to raise a new ground which was not properly raised before the Judge in the proceedings below.
15. The Applicant has not pointed to any specific errors in the Judge’s decision dated 5 January 2022, or raised any viable grounds of appeal against the Judge’s decision in his Notice of Appeal, or in his written or oral submissions.
16. The mere repetition by the Applicant of the basis of his non-refoulement claim is not a valid ground of appeal.
17. In all, the Applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal
|
(Albert Wong)
Judge of the Court of
First Instance
|
The Applicant, unrepresented, appearing 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 being arbitrarily deprived of her 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 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.
|