Lakhbir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CAMP 410/2022, [2023] HKCA 1074

On appeal from [2022] HKCFI 857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 410 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 430 OF 2019)

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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 handed down on 17 March 2023 ([2023] HKCA 364). The Court of Appeal refused to grant extension of time to appeal against the decision of Campbell-Moffat J dated 29 March 2022 dismissing the application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 4 April 2023. 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 entered Hong Kong on 14 July 2015 as a visitor but was refused permission to land. He then raised a non-refoulement claim on the same day on the basis that he would be killed or harmed by one Ashok Kumar and/or his associates, as Mr Kumar’s daughter had eloped with the applicant’s friend.

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 29 August 2022[1].

5.On 5 October 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 17 March 2023 as he failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.The grounds of appeal in the Notice of Motion filed on 21 March 2023 may be summarized as follows:

(1)  The judges erred in determining that the judge below had not failed to appreciate the significance of the applicant’s non-refoulement claim. The lack of assistance provided to the applicant is an error of law or procedure, evidence of procedural unfairness or failure to adhere to a high standard of fairness. Non-refoulement claims are life and limb cases which should be assessed with caution, considering the applicant’s vulnerability and disadvantage;

(2)  The authorities have not made reasonable arrangements to enable the applicant to understand the judgment so he was deprived of the right to seek further avenues of appeal;

(3)  The judgment was lacking in evidential consideration of issues raised in the court;

(4)  He did not request for an oral hearing upon submitting Form 86 because he was not aware that he had to request for an oral hearing while he was not provided with any legal or language assistance;

(5)  The prospect of success should not be determined by the judges at this stage as the applicant has been deprived of the right to put forward his grounds because he was not able to elaborate all the errors of the Director and the adjudicator without legal or language assistance.

7.In his written submissions, he clarified that his complaint against the lack of legal representation is about the appeal before the Board and the issuance of the Notice of Decision by the Immigration Department. He also reiterated the problems concerning the lack of legal and language assistance.

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 Court of Appeal has already dealt with the grounds concerning the lack of legal and language assistance in the judgment dated 17 March 2023. The applicant does not have any viable grounds to show that the Court of Appeal was wrong in its decision. Besides, the applicant’s ground on the lack of evidential consideration of issues raised is not supported by any particulars or evidence. In addition, the applicant 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).

10.For all the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 21 March 2023.

The Applicant, acting in person