RE JARNAIL DASS

CACV 599/2018

[2019] HKCA 1024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 599 OF 2018

(ON APPEAL FROM HCAL NO. 943 OF 2017)

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J U D G M E N T

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

1.  By a judgment dated 25 June 2019 ([2019] HKCA 659), the Court of Appeal dismissed the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) dated 7 December 2018 in HCAL 943/2017 refusing to grant leave to him to apply for judicial review.

2.  By a notice of motion dated 5 July 2019, the applicant now seeks leave to appeal to the Court of Final Appeal.

3.  In the notice of motion, the applicant complained that:

“I would like to inform court there is some error in law in my decision. Decision maker just relied on col (sic) information and my previous facts which were favour on reject my claim. Actual life occur different situation then mentioned col (sic) information. Officer and courts prefer to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray (sic) a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claims.”

4.  On 8 July 2019, the Registrar of Civil Appeals (“the Registrar”) directed the applicant to lodge with the court his written submissions on or before 19 July 2019.  The applicant lodged his written submissions on 19 July 2019.  

5.  In his written submissions, he reiterated his fear of being harmed by the people of opposing political party if refouled as the Indian police and government authorities were corrupt and would not protect him.  He claimed that he would not be able to relocate internally as he did not have the financial means and social network for him to survive in other parts of India.  The applicant further complained that the Torture Claims Appeal Board (“the Board”) had failed to attain the high standard of fairness when deciding his case. There was also a lack of legal representation that rendered the proceedings unfair.

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

7.  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. 

8.  The complaints set out in the notice of motion and written submissions do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, the applicant failed to identify any question of great general or public importance, as required by section 22(1)(b).  The matters raised by the applicant only related to his personal circumstances.  Secondly, the Board had found that there were no substantial grounds for believing that the applicant was targeted or pursued by his political enemies in Indian and he would not be facing any real risk of harm if refouled.  What the applicant stated in the notice of motion and his written submissions simply cannot stand.  Lastly, his various complaints against the Board’s decision are new arguments that this court is not prepared to entertain when leave has not been sought within time.  

9.  We also do not see any basis for granting leave under the “otherwise” limb under section 22(1)(b). The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met.

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