RE NAVJOT SINGH

CACV 112/2022

[2022] HKCA 1456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 112 OF 2022

(ON APPEAL FROM HCAL NO 427 OF 2019)

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JUDGMENT

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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 1012) dismissing the applicant’s appeal against the decision of Campbell-Moffat J given on 29 March 2022 refusing the applicant’s application for leave to apply for judicial review.

2.  On 5 September 2022, the applicant filed a notice of motion (“Notice of Motion”) out of time to apply for leave to appeal against this Court’s judgment to the Court of Final Appeal. He filed an affirmation on the same day in support of his application for seeking leave to file the Notice of Motion out of time.

3.  Pursuant to directions given by the Registrar for Civil Appeals, the applicant has lodged his written submissions on 19 September 2022 to support his application (“Written Submissions”).

4.  Having considered the Notice of Motion, his affirmation and the Written Submissions, 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.

5.  The background to this case and the applicant’s claim have been set out in our judgment. We will not repeat them.

6.  In his affirmation, apart from stating that he did not agree with the decision of this Court and that all the decisions of his claim have made him liable to be removed to the risk state, there were no reasons given by the applicant to explain why his Notice of Motion was filed out of time.

7.  In the Notice of Motion, the applicant stated that he did not agree with our decision because the decision maker did not consider his appeal and that his problem was serious in his home country. He complained that the decision makers did not consider his claim and refused his claim without scrutinizing his problem in his home country and that all the decisions made him liable to be removed to the risk state India.

8.  In his Written Submissions, the applicant submitted amongst other things that:

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

(2)  the judges did not apply the “high standards of fairness”;

(3)  the judges were wrong in law for not having applied the principle of “procedural unfairness”;

(4)  the judges failed to exercise greater care and did not analyse his claims properly;

(5)  the judges had failed to give sufficient chance for the applicant to arrange for relevant evidence to support his claim;

(6)  the applicant will face hardship if he is to return to his home country and Board had significantly relied on source of news which were not officially recognised or it was simply hearsay.

9.  The applicant repeats in the Written Submissions that his life will be under threat in his home country and that he will face hardship if he returns to his home country. There is a high risk of being tortured by his enemies in India and that he has a serious fear of returning to his home country.

10.  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.

11.  The applicant’s affirmation did not set out any reasons for his delay in filing the Notice of Motion. What was stated by the applicant in the Notice of Motion and Written Submissions relate solely to the circumstances and facts of the applicant’s claim, without identifying any error of law in our judgment. 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 paragraphs [13] to [16] 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). The statutory criteria of obtaining leave to appeal to the Court of Final Appeal are not met.

12.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal out of time and dismiss the Notice of Motion.