RE JASKARN SINGH

CACV 268/2019

[2020] HKCA 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 268 OF 2019

(ON APPEAL FROM HCAL NO 164 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  By a reasons for judgment dated 11 October 2019 ([2019] HKCA 1113) (“the Judgment”), this court (Hon Zervos, Au JJA and Coleman J) gave reasons for dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) ([2019] HKCFI 1399) dated 11 June 2019 (“the Deputy Judge’s Decision”) refusing leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 2 February 2018 and the decision of the Director of Immigration dated 7 July 2017 rejecting the applicant’s non-refoulement claim.

3.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.  By a Notice of Motion dated 25 October 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

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.  In the Notice of Motion, the applicant set out the following grounds:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” [sic]

7.  In compliance with the directions given by Master Au-Yeung on 30 October 2019, the applicant lodged his written submissions on 7 November 2019.  In the written submissions, he quoted the same passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 as he did with his written submissions lodged in the appeal before this court.  He further stated, in summary, that (a) the adjudicator acted in a procedurally unfair manner; (b) the decision could be set aside if it is Wednesbury unreasonable; and (c) the Board should consider the requirements under section 37ZT of the Immigration Ordinance (“the IO”) for late filing of notice of appeal.

8.  We have duly considered the applicant’s Notice of Motion and his written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, we did not find any exceptional circumstance in this application to deviate from the usual practice and thus proceeded to consider this application on papers without any oral hearing.

9.  In our view, this application is devoid of merits.

10.  Firstly, the applicant has not in the Notice of Motion and written submissions identified any errors in the Judgment.

11.  Secondly, the grounds of appeal and arguments in the applicant’s written submissions were against the Board, which had been dealt with by the Deputy Judge.  He had found that the Board had not committed any errors in law or procedure: see [28] - [29] of the Deputy Judge’s Decision. We do not find any errors in his decision: see [17] - [22] of the Judgment.

12.  Thirdly, we have already explained at [21] of the Judgment that the authorities relied upon by the applicant did not assist his appeal.  As to the complaint based on section 37 ZT of the IO, this was not raised before the Deputy Judge or this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it[1], nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not previously argued in the Court of Appeal[2].

13.  In other words, none of the grounds raised by the applicant are viable grounds of the appeal.

14.  In any event, the applicant failed to identify in the Notice of Motion or the written submissions any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.

15.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are therefore not met.  Accordingly, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal and dismiss his Notice of Motion.