RE SONU KUMAR

CACV 437/2019

[2020] HKCA 527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2019

(ON APPEAL FROM HCAL NO. 39 of 2018)

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JUDGMENT

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Hon Barnes J (giving the Judgment of the Court):

1.  On 7 May 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 10 September 2019 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion filed on 4 June 2020, the applicant applied for leave to appeal against this Court’s judgment to the Court of Final Appeal.  The applicant had also lodged written submission in support of his application. 

3.  Having considered the applicant’s 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 his Notice of Motion and written submission.  

4.  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.

5.  The Notice of Motion stated:

“The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

The learned Judges were wrong as a matter of law for not having applied the [principle] of procedural unfairness to the Decision of the director whereby the director was required to give reasons justifying the Decision.

The Judge did not apply the law properly.”

6.  In his written submission the applicant cited ST v Betty Kwan [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, Ex Parte Doody [1994] 1 AC 531, and R v Home Secretary, Ex parte Bugdaycay [1987] 1 AC 514, and submitted that high standards of fairness are required.  The applicant also referred to authorities on the Wednesbury unreasonableness principle and contended that the Board acted in a procedurally unfair manner, in that the Board did not properly assess his credibility.

7.  The applicant is in fact making the same submissions he had already made before us when he appealed against the decision of the Judge.  In our judgment handed down on 7 May 2020, at [15] we made clear that the Board had rejected the applicant’s claim for non-refoulement protection because of the lack of credibility.  In refusing to grant leave to the applicant to apply for judicial review, the Judge referred to the adverse findings by the Board and re-iterated that judicial review does not operate as a rehearing of the non-refoulement claim.

8.  Apart from a general allegation made in the Notice of Motion, the applicant has not set out in particular how, we the judges, were wrong in law or had failed to apply the law properly.  

9.  All the matters stated in the Notice of Motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has not identified any question of great general or public importance, as required by section 22(1)(b). 

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

11.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.