RE RAJAN

CACV 131/2020

[2021] HKCA 189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 131 OF 2020

(ON APPEAL FROM HCAL NO. 291 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.  On 12 November 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 May 2020 refusing him leave to apply for judicial review.     

2.  On 7 January 2021, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He had also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, 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.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The facts of this case have been set out in our judgment. We will not repeat them here.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may on such terms as it considers appropriate extend the time for making the application.

6.  The applicant’s notice of motion was late by four weeks.  In his affirmation, the applicant explained his delay on the basis that he did not know the deadline and the court procedure and is handicapped in terms of language proficiency.  We do not find the explanatory satisfactory.  The delay is not insubstantial.  The applicant, however, has not elaborated on what efforts he had made to find out the time limit and procedure for appeal.

7.  We next turn to consider the merits of the intended appeal.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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.

8.  The applicant stated the following grounds of appeal in the notice of motion:

(1)  There is some error in law.

(2)  The decision maker just relied on COI information and facts that favour the rejection of his claim.  Actual life situation was different from that stated in the COI.

(3)  The officer and court preferred to ignore the overwhelming evidence of violence and took a biased and formulaic approach. It is unlikely that they had fairly assessed the danger to his life. 

9.  In his written submission, the applicant advanced the following arguments:

(1)  His case was not determined fairly. Without knowing how the case was determined it is not easy for him to appeal against it.  Non-refoulement claimants like him have limited resources.  There should be a proper and fair mechanism that allows unrepresented litigants to understand more about their case.

(2)  If a litigant has not been informed fully of his right and given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use when it was not even granted in the first place.

(3)  He was never provided with proper legal and language assistance.  The determination of the Board was not read to him in his language.  This is procedurally unfair and should be taken into account.

(4)  The discriminatory act of the authorities towards non-refoulement claimants that aims only at a quick disposal of their claims is unacceptable and is detrimental to the spirit of the judicial system.

10.  The grounds and arguments put forward by the applicant in the notice of motion and written submission do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, they do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, the applicant had not provided any ground for seeking relief in his application for leave to bring judicial review.  His present complaints about the use of COI and the lack of legal and language assistance were never raised in the application for leave to apply for judicial review before the Judge or in the appeal to this Court.  It is not open to the applicant to put forward these new grounds in this application for leave to appeal to the Court of Final Appeal.  In any event, they are general assertions or arguments unsupported by particulars.  The intended grounds of appeal in the notice of motion and the arguments in the written submission have no merits.         

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal to the Court of Final Appeal has no prospect of success. 

13.  There is in the circumstances no good cause to extend the time to apply for leave to appeal to the Court of Final Appeal.  Accordingly, we dismiss the notice of motion.