RE RAJPREET SINGH

CACV 94/2018

[2018] HKCA 654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 94 OF 2018

(ON APPEAL FROM HCAL NO. 405 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 10 August 2018, this Court (Lam VP and Chu JA) handed down our judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 23 March 2018 refusing him leave to apply for judicial review.

2.  By a Notice of Motion dated 21 August 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. On 4 September 2018, the applicant also put in a written submission to support his application.

3.  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.

4.  The Notice of Motion advanced the following grounds:

(1)   He was not aware of the requirement to lodge skeleton submission as he could not understand the Court’s directions. As a non-refoulement claimant with little education and limited English proficiency, he should be given some help and not be punished for the non-compliance. He did not abandon the right to an oral hearing as he had requested for a hearing by two judges.

(2)   The Duty Lawyer Scheme was probably not aware of the BOR 2 assessment because if they knew of it, they would have attempted to reach out to him. 

(3)   It is not true that he did not provide additional information to support his BOR 2 claim.  Rather, given his limited language proficiency, he could not understand the content of the letter.  He could not have sought help for the appeal before the Board because he was not advised as to what BOR 2 was.   

5.  In the written submission, the applicant raised the following additional arguments:

(1)    It was wrong to dismiss his claim on the basis that no particulars were provided.  The grounds were brief because he intended to elaborate in person in his first language.  The lack of language assistance should not be used against him.

(2)    The Board should not have assessed his BOR 2 claim when he had not lodged an appeal against the Director’s decision on the BOR 2 assessment, and had not advanced any ground of appeal on it.  

6.  The applicant requested for an oral hearing to deal with his application.  Paragraph 3 of Practice Direction 2.1 on application for leave to appeal to the Court of Final Appeal filed in the Court of Appeal in civil cases provided that, in general, leave applications will be dealt with and determined on paper without an oral hearing.  Having considered the Notice of Motion and the written submission, we do not consider it is necessary to hold an oral hearing to deal with the application.

7.  As to the matters contained in the Notice of Motion and the written submission, they all relate to the specific facts of this case and the personal circumstances of the applicant.  They do not involve any question of great, general or public importance. 

8.  On the first ground in the Notice of Motion, the two letters from the Court had clearly warned the applicant of the consequences of not complying with the direction to lodge skeleton argument. We had in [3] of our judgment explained the importance of compliance with the requirement to lodge skeleton argument.  This ground is not reasonably arguable.

9.  Concerning the second and third grounds in the Notice of Motion and the second argument in the written submission, they did not form part of the grounds for seeking leave to apply for judicial review and had not been argued before the Judge.  Nor had they been articulated in the appeal before this court.  As for the first argument in the written submission, this appears to be related to [18] of Form CALL-1 which dealt with the applicant’s complaint of misinterpretation at the hearing before the Board.  The applicant’s Notice of Appeal had not put forward any ground of appeal based on this part of the Judge’s reasons.  It is not open to the applicant to put forward new grounds and new argument at this very late stage of the court proceedings.    

10.  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision. 

11.  In the circumstances, the condition for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.