RE LAKHVIR SINGH

CACV 135/2022

[2022] HKCA 1295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2022

(ON APPEAL FROM HCAL 1367 OF 2018)

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J U D G M E N T

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Hon B Chu J (giving the Judgment of the Court):

1.  On 20 July 2022, this court handed down a judgment ([2022] HKCA 1010) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 1 April 2022 refusing the applicant’s application for leave to apply for judicial review.

2.  On 2 August 2022, the applicant filed a Notice of Motion to apply for leave to appeal this court’s judgment to the Court of Final Appeal. Pursuant to directions given by the Registrar for Civil Appeals, the applicant has lodged his written submissions on 15 August 2022 to support his application (“Written Submissions”). As per the Registrar’s further direction, unless this Court otherwise directs, the Notice of Motion shall be determined on paper only without an oral hearing.

3.  Having considered the Notice of Motion, 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 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.  In the Notice of Motion, the applicant stated that he did not agree with our decision because our decision made him unhappy, in that we did not consider his appeal properly. He also did not agree with all the previous decisions in relation to his claim, because they did not consider his problem in his home country and all the decisions undermined the Judge’s discretion, and that all the decisions including those of the adjudicator (“Adjudicator”)/the Torture Claims Appeal Board (“Board”) and the Director of Immigration (“Director”) were simply hearsay, with no reasonable explanation.

7.  In his Written Submissions, he submitted amongst other things that:

(1)  the judges were wrong for not having applied the principle of irrationality to the decision made by the Director and the Adjudicator;

(2)  the judge did not apply high standards of fairness in the determination of his claim;

(3)  the judges failed to apply the principle of procedural unfairness;

(4)  the judge failed to consider his problems which were very severe in his home country and had not analysed his claims properly;

(5)  the Adjudicator had failed to give sufficient chance to him to arrange for relevant evidence for his non-refoulement claims as well as his appeal;

(6)  the applicant would face hardship if returned back to his home country and that the Board had significantly relied on the source of news which was not officially recognized, or it was simply hearsay;

(7)  the Adjudicator failed to evaluate and make a finding of fact as to whether there was a consistent pattern of gross and mass violation of human rights in India;

(8)  the Adjudicator failed to analyse and assess whether state protection existed in India and misdirected himself as to the extended meaning of state protection.

8.  The applicant repeated that his life in his home country would be under threat and that if he were returned to his home country he would be tortured/killed by his enemy who were still looking for him, and that he had a serious fear of returning to his home country.

9.  What was stated by the applicant in the Notice of Motion and Written Submissions relate solely to the circumstances and facts of his claim. No question of great general and public importance has been identified, as required by section 22(1)(b) of the Ordinance. Further, for the reasons we gave in [15] to [18] of our judgment, the matters put forward by the applicant in this application are unarguable. We also do not see any basis for the “or otherwise” limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, the Notice of Motion is dismissed.