RE SUBASINGHE MANAGE DUSHANTHA KUMARA

CAMP119/2019

[2021] HKCA 556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 119 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 564/2017)

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Before:  Hon Chu JA, Barma JA and Au JA in Court

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J U D G M E N T

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

1.  On 8 December 2020, this court (Chu JA, Barma JA and Au JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 13 February 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 13 January 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“…I would like to say that still I have problem by loan shark. He can do anything to me any harm to my life. Therefore I am second to go at this time because he have connection with all politician and police department too. I came here with injured leg. He was beaten me and try to kill then I taken the treatment in Hong Kong. I need thanks to doctor of Hong Kong to treat me and I will submit my medical certificate in my oral hearing. Thank you.”

4.  In the affirmation dated 13 January 2021, the applicant deposed that:

“I would like to inform you that I never my order and decision in time and today I taken copy from office and I need to notice of motion again this decision. Thank you.”

5.  The applicant lodged a written submission in support of the application on 28 January 2021.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He explained why his life is in danger and identified the documents he intended to submit to court at the next oral hearing.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers, despite the applicant’s requests for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  Although the delay was not very lengthy, we are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  The explanation for his delay given in his affirmation lacked particulars.   He also did not explain why he was unable to receive the court’s judgment or why he went to the “office” to get a copy of the judgment.  We nonetheless go on to consider the merits of the intended appeal.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.  The only grounds for the application are that he will face harm upon his return and that he needs to stay in Hong Kong for treatment.  Neither of those grounds are valid grounds of appeal as they do not identify an error in our judgment.  These grounds are also not viable grounds for seeking non-refoulement protection in themselves. In any event, the Board has held that the applicant would not be subject to any of the proscribed harm upon his return and that he will be afforded with state protection.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

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

11.  For these reasons, the Notice of Motion dated 13 January 2021 is dismissed.