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

FAMV No. 12 of 2023

[2023] HKCFA 43

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2023 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 31 OF 2022)

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REASONS FOR DETERMINATION

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The Appeal Committee:

1.We dismissed this application for leave to appeal to the Court of Final appeal at the hearing and indicated that we would hand down our reasons for doing so in due course. These are those reasons.

2.The applicant is claiming non-refoulement on the basis that, if returned to his home country of India, he would be harmed or killed by a creditor due to his inability to repay a loan. His claim was refused by the Director of Immigration on the basis there was no risk of torture, infringement of BOR2 or BOR3 or persecution.

3.The applicant initiated an appeal against that decision to the Torture Claims Appeal Board. While that appeal was afoot, he was being prosecuted for remaining in Hong Kong without the authority of the Director of Immigration and remanded in Stanley Prison. He subsequently wrote to the Board to “close [his] torture claim case” and the Board wrote to accept this as a withdrawal of the appeal on the basis that the applicant was seeking the withdrawal of his own free will and understood its consequences. The Board therefore confirmed the Director’s decision refusing his non-refoulement claim.

4.The applicant subsequently applied for judicial review of the Board’s decision. The judge regarded the issue as being whether the Board’s decision to accept the applicant’s withdrawal of his appeal was subject to judicial review and concluded it was apparent the applicant withdrew his appeal of his own volition. The judge therefore refused to grant the applicant leave to apply for judicial review.

5.On further appeal to the Court of Appeal, the applicant alleged that, in the course of his prosecution for illegal entry, he had been told to withdraw his appeal to the Board so that his prosecution could be concluded and he could be released from Stanley Prison. There is some inconsistency in the applicant’s account as to who allegedly told him this. However, he requested the Court of Appeal to allow him to re-open his case. The legal substance of the complaint is that the advice he was given, assuming it was of the tenor he alleged, was incorrect and misleading and so would render the withdrawal of his appeal to the Board a nullity.

6.The Court of Appeal held that the applicant’s allegation that he was misled into withdrawing his appeal or that he did not understand the consequences of his doing so was never raised either in the applicant’s Form 86 or his affirmation in support. In other words, this was an entirely new point sought to be raised in the putative judicial review proceedings. The Court of Appeal therefore refused to entertain this new point and dismissed the appeal.

7.The Court of Appeal was correct to do so. The new point is fact sensitive. It is not clear on the facts precisely how and in what circumstances the applicant alleges he was told he should withdraw his appeal to the Board. There is an inconsistency between the applicant’s allegations in this regard between his notice of appeal to the Court of Appeal and his written submissions before that court. In short, there is no factual foundation for saying that the applicant was misled in any material way.

8.When this application for leave to appeal was filed, the Registrar issued a summons to the applicant under Rule 7(1) of the Hong Kong Court of Final Appeal Rules (Cap.484A) requiring the applicant to show cause why the application should not be dismissed. The submissions filed by the applicant in response to that summons did not disclose any reasonably arguable ground for the grant of leave to appeal. However, we directed an oral hearing of the application in order to draw attention to the fact that the judge in the Court of First Instance may have addressed the question of withdrawal of the applicant’s appeal to the Board inadequately by appearing to confine the decision to one of whether the withdrawal was done on the applicant’s own volition. If an applicant has properly raised the issue of whether he had been misled into withdrawing his appeal, albeit of his own volition, it would be  necessary for the decision maker to consider the validity of that allegation and whether, if made out, it rendered the withdrawal a nullity notwithstanding that it was voluntary. As we have already indicated, no factual basis for such an allegation has been properly raised in this case. However, insofar as an allegation of this nature might be raised on a future occasion (and admittedly this is likely to be rare), the correct approach would be for the Board to consider the validity of the withdrawal by assessing the evidence and making relevant findings of fact before ruling on whether the withdrawal was valid or not. Alternatively, if the Board had not done so, then on an application for judicial review properly raising this point, it would be a question for the judge to decide whether to direct the Board to do so.

9.We therefore take this opportunity to note the correct approach that should have been adopted had the allegation that the applicant was misled into withdrawing his appeal to the Board been properly raised.

10.For these reasons, we dismissed the application for leave to appeal.

The Applicant, appeared in person

The Putative Respondent, not attended

Ms Queenie Lau, instructed by, and Mr Felix Lee, SGC (Ag) of, the Department of Justice, for the Putative Interested Party