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

CACV 335 /2021

[2022] HKCA 1188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 335 OF 2021

(ON APPEAL FROM HCAL NO 2035 OF 2018)

________________________

BETWEEN

________________________

Before:  Hon Kwan VP and Yuen JA in Court

Date of Judgment:  19 August 2022

________________________

J U D G M E N T

________________________

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

1.This is the 1^st 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 Yuen JA)  handed down on 7 January 2022 ([2022] HKCA 7). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge To dated 23 June 2021 ([2021] HKCFI 1733)  refusing leave to the applicants to apply for judicial review concerning their non-refoulement claims.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 2 March 2022 that the 1^st applicant shall lodge written submissions on or before 16 March 2022.  It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction.  The 1^st applicant did not lodge written submissions as directed.  Having considered the papers of this case, we think it appropriate to determine this application on paper and proceed to do so.

3.The 1^st applicant is a national of India.  He arrived in Hong Kong as a visitor but was subsequently arrested for various criminal offences and overstaying.  He lodged his non-refoulement claim on 2 March 2009.  The 2^nd applicant is the daughter of the 1^st applicant born on 2 November 2011 upon his marriage to his present wife in Hong Kong.  The 2^nd applicant also lodged a non-refoulement claim and on 9 May 2014, the 1^st applicant informed the Director of Immigration (“Director”)  that he would act on behalf of the 2^nd applicant.  The 1^st applicant’s claim for non-refoulement, which he asserts is the same for the 2^nd applicant, is on the basis that he would be harmed or killed by his uncle due to a private land dispute. 

4.Their non-refoulement claims were rejected by the Director on 27 November 2014 and 25 January 2017.  Their appeal against the Director’s first decision was dismissed by the Torture Claims Appeal Board on 21 November 2016. The applicants did not appeal against the Director’s second decision.

5.The applicants filed a Form 86 on 26 September 2018 to seek leave to apply for judicial review against the Director’s decision, albeit the date was incorrectly stated in the Form 86.  In any event, DHCJ To refused to amend the applicants’ Form 86 upon consideration of their merits and dismissed their application to seek leave for judicial review on 23 June 2021.

6.The applicant filed a Notice of Appeal on 2 July 2021.  The appeal was dismissed by the Court of Appeal on 7 January 2022.  He filed a Notice of Motion on 2 March 2022 for leave to appeal out of time to the Court of Final Appeal.

Grounds of appeal

7.The grounds of appeal in the Notice of Motion may be summarised as follows:

(1)  There is error in law in the decision.

(2)  The decision maker just relied on the Country of Origin information (“COI”)  which favours the rejection of the applicant’s claim.  The applicant claims that the actual situation is different from the COI.

(3)  The authorities ignored the evidence of violence towards the minorities.  The decision betrayed a biased and formulaic approach unlikely to fairly assess the danger of the applicant’s life and is clearly calculated to reject his claim.

(4)  His life is in danger if he is returned to India.

Analysis and disposition

8.Under section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5)  further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal. 

9.Good grounds have to be shown by the applicant for the court to grant an extension of time.  The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

10.Section 22(1)(b)  of the Ordinance 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.

11.In the present application, the applicant was late for almost one month in filing his Notice of Motion and explained in his affirmation that he was late because of the serious situation of the pandemic in Hong Kong at the time and he was afraid to leave home. Also he did not have money to pay for someone to help him prepare the necessary documents.  We do not consider these to be good reasons for the delay.

12.In any event, the grounds in the Notice of Motion are devoid of merits. He has failed to demonstrate that the Court of Appeal was wrong in dismissing his appeal.  His contention that there is some error in law is just a bare assertion without any particulars or elaboration.  Furthermore, he has not identified 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).

13.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 2 March 2022.

The 1^st Applicant (Appellant), acting in person