RE SUKHJINDER SINGH

CACV 172/2019

[2019] HKCA 1337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 172 OF 2019

(ON APPEAL FROM HCAL 606 OF 2018)

___________________

___________________

_______________

J U D G M E N T

_______________

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

1.  This Court (Chu JA and Wong J) gave Judgment on 21 October 2019 dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 April 2019 refusing his application for leave to apply for judicial review concerning his non‑refoulement claim.  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our Judgment and will not be repeated here.

2.  The applicant subsequently applied, by a Notice of Motion dated 24 October 2019, for leave to appeal to the Court of Final Appeal.  On 29 October 2019, the Registrar of Civil Appeals directed the applicant to lodge written submissions by 7 November 2019 and if there is written submission in opposition by the party / parties who has / have been served with the Notice of Motion it be filed within 14 days after having been served with the submission.

3.  The Registrar had further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.

4.  The applicant filed a written submission on 4 November 2019.  No submission in opposition has been filed by one of the putative respondent, the Torture Claims Appeal Board.  In a letter dated 8 November 2019, the Director of Immigration indicated that he will take a neutral stance to the appeal.

4.   In his Notice of Motion, the applicant stated he wants to stay here and asked for further processing of his application.

5.  The main points which the applicant stated in his submission which the court received on 4 November 2019 may be summarised as follows:

(a)     He left his country because his life was not safe there, it was difficult for him to survive;

(b)     He is not satisfied with all the decision regarding his case and criticised that the decision makers ignored some real facts which are relevant;

(c)     In his country, law and order making authorities always back up those who have power and political backup;

(d)     He cannot hide himself from these people, if he goes back to his country, he may be killed or tortured by them, these people are still looking for him;

(e)     Nobody dares to stand by him and talk to these people;

(f)      His enemies are too powerful and he has no resource to protect himself;

(g)     He wants to stay in Hong Kong until his problem is solved;

(h)     Death and torture of innocent people during police custody are common and those people responsible for this are not held accountable since they are in power; and

(i)     Culprits of crime are not brought to justice since they can bribe the police.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance[1] provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.

7.  No question of great general or public importance has been identified in the grounds in the Notice of Motion and the subsequent written submission.

8.  Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).  The applicant is simply repeating in his written submission matters which the Judge was aware of.  Indeed, at the stage of applying for leave to apply for judicial review, the applicant did not specify in his Notice (Form 86) and supporting affirmation any ground in support of his application.  The primary facts and relevant matters, however, were set out in the Notice of Decision dated 13 July 2015 and the Notice of Further Decision dated 14 December 2016 of the Director of Immigration as well as in the Decision of the Appeal Board[2] dated 1 March 2018.  There was a hearing for the application.  The judge demonstrated that he had carefully considered the case.  We found no fault in his consideration and decision.  The role of the Court of Appeal in an appeal of this nature was clearly set out in our judgment.[3]  An appeal against the refusal of leave to judicial review by a judge in the Court of First instance is not an occasion for regurgitating arguments advanced and rejected by the judge.

9.  The overall observation of the Judge was that the applicant’s case is not reasonably arguable and there is no realistic prospect of success in an application for judicial review.  We did not discern any mistake in the decision made by the Judge.

10.  In the circumstances, we cannot find any basis for granting leave to appeal to the Court of Final Appeal.

11.  By virtue of the above, the Notice of Motion dated 24 October 2019 is dismissed.