RE PAL SUSHIL KUMAR

CACV 204/2019

[2021] HKCA 4

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 204 OF 2019

(ON APPEAL FROM HCAL NO 833 of 2018)

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JUDGMENT

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

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Toh J) handed down on 19 August 2019 ([2019] HKCA 927)(“the judgment”) dismissing his appeal against the decision of Deputy High Court Judge Josiah Lam on 17 April 2019. By his decision the learned judge had refused the applicant’s application for leave to seek judicial review of the decision of the adjudicator of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  By a Notice of Decision dated 23 March 2015, the Director of Immigration rejected the applicant’s claim.

3.  The applicant appealed to the Board against the Director’s decision and his appeal was dismissed by the Board on 10 May 2018.

4.  He filed a Form 86 on 14 May 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by Deputy High Court Judge Josiah Lam on 17 April 2019.

5.  The applicant filed the Notice of Appeal against the decision of the judge on 29 April 2019, the appeal was heard on 13 August 2019.  It was dismissed by the Court of Appeal on 19 August 2019.

6.  The applicant filed a Notice of Motion on 30 August 2019.  Despite the direction given by Registrar of Civil Appeals given on 3 September 2019, the applicant has failed to lodge any written submission in support of his application. 

7.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 September 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We think it appropriate to do so, and will determine this application on paper.

The grounds of appeal

8.  The grounds of appeal as stated in the notice of motion are summarized as follows:

(1)  that the learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the High Court judge refusing his application for judicial review;    

(2)  procedural unfairness; and

(3)  that the judge did not apply the law properly.   

Discussion and Disposition

9.  Section 22(1)(b) of Hong Kong Court of Final Appeal Ordinance, Cap 484, provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

10.  The applicant’s grounds of appeal do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  He has failed to identify any questions of great general or public importance which ought to be submitted to the Court of Final Appeal for determinations in accordance to the section 22(1)(b).  He has not advanced any reasonably arguable grounds to reverse the judgment of the Court of Appeal.  There is also no basis for granting leave on the “or otherwise” limb under section 22(1)(b).

11.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.