RE DANGALLA APPUHAMILAGE MAHESH P.D.

CACV 199/2023, [2024] HKCA 433

On Appeal From [2024] HKCA 5

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 199 OF 2023

(ON APPEAL FROM HCAL NO 1109 OF 2021)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the court):

1.  By a judgment dated 12 January 2024 ([2024] HKCA 5)  (“the Judgment”), this court dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 15 June 2023 ([2023] HKCFI 1534)  (“the Decision”), whereby the Deputy Judge, inter alia, refused his application for leave to apply for judicial review.

2.  On 19 January 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the Judgment.

3.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

4.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.  In his Notice of Motion, the applicant only stated:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

6.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 2 February 2024. In those submissions he cited various legal authorities on the principles of high standards of fairness and Wednesbury unreasonableness and further cited section 37ZT of the Immigration Ordinance (Cap 115)  concerning the late filing of the Notice of Appeal before the Board.  However, he failed to elaborate on his assertions and how those authorities were relevant to his case.  He further alleged that the Board had acted in a procedurally unfair manner.

7.  At the outset, his intended appeal has no merit at all.  The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Further, his allegations are essentially a mere regurgitation of those submissions he had previously made before this court in his appeal, which we had already considered and rejected: see [10] - [17] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3]. The applicant has failed to identify any specific error in the Judgment with particulars.  Clearly, his assertions do not constitute proper grounds of appeal.

8.  In any event, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit. Accordingly, the Notice of Motion filed is dismissed.