RE PANAGODA LIYANAGE SURANGA DULIP PERERA

CACV 129/2023, [2023] HKCA 1201

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 129 OF 2023

(ON APPEAL FROM HCAL NO. 455 OF 2019)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  On 22 August 2023, this court handed down a judgment ([2023] HKCA 1043) dismissing the applicant’s appeal against the decision of Deputy High Court Judge To given on 21 April 2023 refusing to give him leave to apply for judicial review.

2.  On 24 August 2023, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal. He has also put in a written submission to support the application.

3.  Having considered the Notice of Motion, the affirmation and the written submissions, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim had been set out in our judgment. We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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 Notice of Motion sets out the following grounds in support of the application:

(1)  The court was wrong as a matter of law for not having applied the principle of irrationality to the decision of the Director of Immigration.

(2)  There is some error in law in the decision. The decision maker only relied on country of origin information (“COI”) and facts that favour the dismissal of the applicant’s claim.

(3)  Actual life situation is different from what is stated in the COI. The decision maker and the court ignore the overwhelming evidence of violence towards the minorities.

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

7.  The applicant also stated in his affirmation that he has a good ground of appeal, but did not elaborate on what the ground is.

8.  The written submission quotes extensively from judgments on the high standards of fairness and on Wednesbury unreasonableness. It states that the decision has the effect of finally disposing of the applicant’s claim rendering him liable to be removed from Hong Kong, and this will have a real and significant impact on the applicant. It submits that the Torture Claim Appeals Board acted in an unfair manner in assessing the applicant’s credibility. The written submission also refers to section 37ZT of the Immigration Ordinance, Cap. 115 which relates to late filing of notice of appeal to the Board.

9.  We are of the view that the matters set out in the notice of motion, affirmation and written submission do not afford any basis for granting leave to appeal. Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance.

10.  Further, the grounds in the notice of motion were never raised by the applicant before the Judge in his application for leave to apply for judicial review. Nor were they raised before this Court in the appeal against the Judge’s refusal to grant the applicant leave to apply for judicial review. It is not open to the applicant to advance new arguments in an application for leave to appeal.

11.  As to the written submission, it has not been shown how the legal principles set out in it relate to the applicant’s case. The reference to section 37ZT of the Immigration Ordinance is clearly irrelevant as the applicant’s appeal to the Board was not late. The complaint about procedural unfairness lacks particulars and is no more than a bare assertion.

12.  In any event, for the reasons given in [18] to [24] of our judgment, the arguments raised by the applicant in this application are not arguable.

13.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

14.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.