RE KHAN KHALIL

CACV 42/2018

[2021] HKCA 434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 42 OF 2018

(ON APPEAL FROM HCAL 222/2017)

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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 May 2018, this court (Lam VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Au-Yeung J (“the judge”) on 5 February 2018 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 appeal, 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 filed on 18 June 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“There is an error in my decision. The decision maker just relied on information facts which were in favor of rejecting my claim, actual life occur different situation than mentioned. Officers and court prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

I believe the decisions were not reasonable and fair. Indeed the right to life is protected under article 28 of the Basic Law and Article 2 of the Bill of Rights. The right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country India.

The learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the TCAB refusing my application.”

4.  In the affirmation filed on 18 June 2020, the applicant deposed that:

“I am presently detained by the Immigration Authorities.

I was never served with the judgment.

Leave be granted to me to file notice of motion out of time”

5.  The applicant lodged a written submission in support of the application on 7 July 2020.  In the written submission, the applicant submitted that the Board did not properly assess his credibility and acted in a procedurally unfair manner.  The Board’s decision was unreasonable and failed to meet the high standard of fairness.  The applicant also cited a number of authorities without explaining how they are relevant.

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.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The application is made very late, some two years out of time.  Although the applicant claims not to have received the judgment he has provided no explanation as to why this should be so, or when and how he came to know of the judgment.  In any event, the application is unmeritorious.  

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.  All of the grounds of appeal lacked sufficient particulars.  Further, the issues in those grounds (such as the treatment of country of origin information and the alleged danger upon his return) have already been dealt with in detail in our judgment dated 8 May 2018 and the applicant has failed to substantiate any error in that judgment.  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 filed on 18 June 2020 is dismissed.