RE CHATER SAINGH

CACV 18/2021

[2022] HKCA 337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2021

(ON AN APPEAL FROM HCAL NO. 1046 OF 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 30 June 2021, this Court handed down our judgment ([2021] HKCA 917) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 11 January 2021 which refused to give him leave to apply for judicial review.     

2.  On 28 December 2021, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, 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 have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.  In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.  

6.  The applicant’s notice of motion is late by about five months, which is a serious delay.  The applicant explained in his affirmation that he is serving a prison term and he did not receive the Judgment from the High Court.  We note from the court file that the judgment and the sealed court order were mailed to the applicant on 30 June 2021 at the address stated in the notice of appeal filed on 21 January 2021.  We also note from the notice of motion and the supporting affirmation that the applicant is at Tai Lam Correctional Institution.  Although the applicant did not elaborate on when he was incarcerated, we are prepared to accept that he did not receive the judgment.  We would, however, point out that the applicant should have informed the Court of the change in his address after he was detained.   

7.  As to the merits of the intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

8.  The notice of motion stated that (i) the judges were wrong as a matter of law for not applying the principle of procedural unfairness whereby the Director of Immigration is required to give reasons justifying his decision; (ii) the judges were wrong as a matter of law for not applying the principle of irrationality; (iii) there is some error in the determination of the applicant’s case.  The decision maker just relied on country of origin information and facts that favour the rejection of his case; (iv) the actual country condition is different.  The immigration officer and the High Court prefer to ignore the overwhelming evidence of violence committed on the minorities; (v) the judge did not apply the law properly and there was procedural unfairness; and (vi) the applicant’s life is in danger in his country. He will be killed or harmed upon his return.

9.  The written submission lodged on 20 January 2022 quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and referred to decisions on Wednesbury unreasonableness and also section 37ZT of the Immigration Ordinance which concerns the late filing of notice of appeal to the Board.  It submitted that: (1) the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim; (2) the Board acted in a procedurally unfair manner in dealing with the applicant’s case and did not properly assess his credibility.        

10.  The matters put forward by the applicant do not afford any basis for granting leave to appeal.  Importantly, they all relate to the applicant’s claim and personal circumstances.  It has not been shown that the intended appeal involves a question of great general or public importance. 

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

12.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.