MURUGANANTHAM RATHNA KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 113/2022

[2023] HKCA 214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 113 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1938 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 5 August 2022 ([2022] HKCA 1145). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 7 January 2022 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement claim[1].

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 9 August 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 23 August 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of India. He came to Hong Kong on 1 April 2016 as a visitor. He subsequently overstayed and surrendered to the Immigration Department on 18 April 2016. He lodged his non-refoulement claim on 5 and 15 July 2016 on the basis that he would be harmed or killed due to a dispute and physical altercation with a man named Putturaj, who is a member of the ruling party of the region at the material time and a local thug. The applicant was also in fear of creditors from whom he borrowed money in order to depart from India to find work.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 10 March 2022[2].

5.  On 19 April 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 5 August 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The applicant filed a Notice of Motion on 9 August 2022 to seek leave to appeal to the Court of Final Appeal and put forward the following grounds of appeal:

(1)  There are some errors in the decisions of the authorities and the court. He disagrees with the decisions of the Director of Immigration and the Torture Claims Appeal Board. He does not think that his case was determined fairly.

(2)  His life is still in danger in his homeland in India.

7.  In his written submissions, he further contended that:

(1)  Whilst it may be true that interpretation service does not need to be made available at all times to a non-refoulement claimant, it does not mean that the basic right of a litigant to understand contents of the process or judgment can or should be deprived of.

(2)  In the applicant’s case, no assistance has been given to him regarding his claim under BOR 2 risk.

(3)  The lack of sound judgment and fairness throughout the non-refoulement claim process is appalling and should not be tolerated. The Court of Appeal should investigate, point out and correct such misbehaviour in the decision makers.

Analysis and disposition

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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 Court of Final Appeal for decision.

9.  The applicant’s complaints in respect of the lack of language and legal assistance have already been dealt with by the Court of Appeal. The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application. Contrary to the applicant’s submission, the applicant had received legal assistance from the Duty Lawyer Service in making his non-refoulement claim to the Director of Immigration, which was assessed under all applicable grounds including BOR 2 risk. Besides, the applicant failed to provide any evidence to support his grounds, nor did he identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion filed on 9 August 2022 for leave to appeal to the Court of Final Appeal should be dismissed.