RE MANDEEP SINGH

CAMP 199/2023, [2024] HKCA 619

On Appeal From [2024] HKCA 264

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 199 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 776 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  On 2 April 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 20 March 2024 (“the Judgment”)  ([2024] HKCA 264).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  dated 30 March 2023, by which the Judge dismissed his application for leave to apply for judicial review ([2023] HKCFI 853).

2.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

4.  In his Notice of Motion filed on 2 April 2024, the applicant complained that the Judge failed to give proper weight to state acquiescence in his case which had led to an unfair outcome.  He further repeated that he had been tortured in his home country and that the state would be liable for failing to provide reasonable protection for its citizens.

5.  Contrary to Practice Direction 2.1, the applicant failed to lodge his written submissions.

6.  In our view, the applicant’s application is devoid of merits.  The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Furthermore, the arguments raised by the applicant in his Notice of Motion were not argued before the Judge or before this court in his appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  Plainly, his assertions are not proper grounds of appeal.

7.  In any event, as stated at [18] of the Judgment, the assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  The applicant fails to specify any error in the Judgment.  Accordingly, his arguments are without merit.

8.     Further and in any event, even taking them at their highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant fails to identify any question of great general or public importance in the intended appeal, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.