RE SURINDERPAL AND OTHERS

CACV 468/2021, [2023] HKCA 1139

On Appeal From [2022] HKCA 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 468 OF 2021

(ON APPEAL FROM HCAL NO 1079 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an application for leave to appeal to the Court of Final Appeal (“CFA”). The applicants are a husband and wife from India whose claims for non-refoulement protection in Hong Kong were rejected by the Director of Immigration and by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). Their application for leave to apply for judicial review of the Board’s decision was dismissed by the Court of First Instance. Their appeal against that decision was dismissed by this Court in our judgment dated 19 September 2022 (though the appeal of their two children, the 3^rd and 4^th applicants below, was allowed).

2.  By Notice of Motion filed on 14 July 2023, the 1^st and 2^nd applicants seek leave to appeal against our judgment to the CFA. In that document they state that the judges were wrong in not having applied the “principle of procedural unfairness” and the “principle of irrationality” to the decision of the Director. They submit that there was some error in law in the decision, that the actual situation was different from the country of origin information, and that the decision-makers had ignored the overwhelming evidence of violence towards minorities. They submit that the Judge did not apply the law properly and there was procedural unfairness.

3.  The written submissions of the two applicants lodged on 16 August 2023 merely make certain general statements quoting passages from previous court decisions, without any particulars as to how they apply in the present case.

4.  There is no reason for us to depart from the usual practice of determining an application for leave to appeal on the basis of the available materials without an oral hearing, as set out in paragraph 3 of Practice Direction 2.1.

5.  We take the view that this application ought to be dismissed because the two applicants have not shown that the intended appeal raises any question which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision (which is the condition for giving leave to appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484), and also because they have failed to show any prospects of success in the intended appeal. Further, there has been a very lengthy delay beyond the 28-day time limit after our judgment of 19 September 2022 before the Notice of Motion was filed on 14 July 2023. Their affirmations that accompany the Notice of Motion state that they were unaware of the rules on the time limit and were not legally represented, but this is not an excuse for the delay of almost 10 months.

6.  Accordingly, the Notice of Motion is dismissed.