Amandip Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 272/2020

[2021] HKCA 258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2020

(ON APPEAL FROM HCAL NO 461 OF 2018)

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Before: Hon Kwan VP, Cheung JA and Au JA in Court

Date of Written Submission: 3 February 2021

Date of Judgment: 8 March 2021

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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, Cheung JA and Au JA) handed down on 8 January 2021 ([2021] HKCA 16). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge Bruno Chan on 9 July 2020 ([2020] HKCFI 1434) dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 January 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 3 February 2021.  Having considered his submissions, we consider it appropriate to determine this application on paper and will proceed accordingly.

3.The applicant is a national of India and of 30 years old.  He came to Hong Kong as a visitor on 28 November 2013.  He subsequently overstayed and surrendered to the Immigration Department on 21 January 2014. He lodged a non-refoulement claim which was received by the Immigration Department on 12 March 2014.  His claim was made on the basis that he would be harmed or killed by his paternal uncle for causing serious injuries to his uncle’s son during a fight.

4.His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 27 June 2017.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 7 March 2018.

5.He filed a Form 86 on 20 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by DHCJ Bruno Chan on 9 July 2020.

6.On 17 July 2020, the applicant filed a notice of appeal against the decision of DHCJ Bruno Chan.  The hearing of his appeal scheduled on 5 January 2021 was vacated as he failed to lodge skeleton argument pursuant to the directions of the Registrar of Civil Appeals.  His appeal was dealt with on paper and dismissed by the Court of Appeal on 8 January 2021. The applicant filed a Notice of Motion on 20 January 2021 for leave to appeal to the Court of Final Appeal.

7.The applicant stated the following as his grounds of appeal in the Notice of Motion:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL^[1] [sic] Information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

8.His contentions in his written submissions may be summarized as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker and the decision maker is under a duty to act fairly;

(2)  the Board erred in approaching the matter by simply trying to see whether he could find fault with the Director’s decision but failed to consider matters such as the country conditions of the applicant’s country of origin.

9.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.

10.The applicant’s grounds are just bare assertions without particulars and evidence in support.  He has not demonstrated that the Court of Appeal was wrong in rejecting his appeal.  He has also failed to 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). 

11.We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion filed on 20 January 2021.

The Applicant (Appellant), acting in person