RE JAGDEV SINGH

CACV 22/2023, [2023] HKCA 844

On Appeal from [2023] HKCA 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 22 OF 2023

(ON APPEAL FROM HCAL 637/2019)

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JUDGMENT

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Hon Lisa Wong J (giving the judgment of the court):

Application

1.  Before the court is a notice of motion filed on 22 May 2023 for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment dated 12 May 2023[1] of this court (G Lam JA and Lisa Wong J) (“Judgment”). By the Judgment, this court dismissed the applicant’s appeal from a decision dated 19 January 2023[2] by Deputy High Court Judge Bruno Chan, refusing him leave to apply for judicial review of the decision dated 28 February 2019 of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim.

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper on the basis of the written materials filed with the court without an oral hearing. We agree that paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  In seeking leave to appeal to the CFA, the applicant first asserted in the notice of motion as follows (sic):

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.  Second, on 31 May 2023, the applicant lodged written submission, by which he referred to ST v Director of Immigration (sic)[3] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim; and (4) that the court can intervene by judicial review when it is satisfied that the action in question is beyond the range of responses open to a reasonable decision maker. However, the applicant has not explained how any of these principles are relevant to his claim for non-refoulement protection.

6.  The applicant further referred to s 37ZT of the Immigration Ordinance (Cap 115), which sets out the matters that the Board should take account of in deciding whether it should entertain a late appeal against the rejection of a non-refoulement claim by the Director of Immigration. This section clearly has no application in the instant case as the applicant’s appeal to the Board was not out of time.

Discussion and disposition

7.  We have given detailed reasons for dismissing the applicant’s appeal against the refusal of leave for judicial review. See [20]-[22] of the Judgment. The applicant has made no attempt to engage our reasons.

8.  The applicant has plainly not identified any specific error in the Judgment that raises any, or any arguable, issue for determination by the CFA, whether of great, general or public importance or otherwise.

9.  Nor do we see any scope to grant leave under the “or otherwise” limb.

10.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.