RE S

CAMP 88/2019

[2020] HKCA 323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 88 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 160 OF 2016)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  By a judgment dated 11 November 2019 ([2019] HKCA 1221), the Court of Appeal dismissed the applicant’s appeal against the decision of D’Almada Remedios J (“the Judge”) dated 29 May 2017 in HCAL 160/2016 refusing to grant him leave to apply for judicial review.

2.  By a notice of motion dated 30 December 2019, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality in considering the decision made by the Director of Immigration (“the Director”).

(2)  The decisions made by the Director and the Torture Claims Appeal Board (“the Board”) were wrong, unreasonable and unfair. The applicant contended that he would face extra-judicial killing if refouled and his right to life is protected by the legal provisions in the Basic Law, the Hong Kong Bill of Rights Ordinance, Cap. 383 and the Criminal Law.

(3)  The Board had relied on the source of news which was not officially recognized or hearsay evidence in considering his case and he would in fact face hardship if refouled.

(4)  The judges did not apply the law properly.

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 2 January 2020, the applicant lodged his written submissions on 10 January 2020.  In his written submissions, he quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 4 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance, Cap. 115, and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  

4.  The Registrar directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if 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. 

6.  The complaints against the Judge and this Court as stated in grounds (1) and (4) are vague and general without any elaboration on which part of the decisions were wrong in law or irrational and they are not valid grounds of appeal.

7.  Grounds (2) and (3) are mere regurgitation of arguments advanced and rejected by the Judge at the lower court hearing.  As explained in paragraph 16 of our judgment, the applicant’s case was rejected by the Board on the grounds that his alleged incidents of assault did not involve any form of state instigation or public officials and the alleged injuries did not attain the minimum level of severity that would warrant any non-refoulement protection.  The Board’s findings were duly endorsed by the Judge and the applicant did not pinpoint any errors of law or procedure in the Judge’s decision before the Court of Appeal.  In the circumstances, what the applicant stated in the notion of motion and written submissions simply cannot stand.

8.  For the reasons that we gave in our judgment of 11 November 2019, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.