RE RATHOR TANVEER HUSSAIN

CACV 162/2022

[2023] HKCA 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 162 OF 2022

(ON APPEAL FROM HCAL NO 195 OF 2019)

___________________________

___________________________

___________________

J U D G M E N T

___________________

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

1.  This court handed down judgment on 13 September 2022 ([2022] HKCA 1264) dismissing the applicant’s appeal against an order of DHCJ K.W. Lung given on 14 April 2022 refusing to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim.

2.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 20 September 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.

4.  The Notice of Motion contains the following grounds of appeal:

“1. The learned Judges were wrong as a matter of Law for not having applied the principle of procedural unfairness to the decision of the director whereby the director was required to give reasons justifying the decision.

2. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

4. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

5. The Judge did not apply the law properly & Procedural unfairness.”

5.  In compliance with the directions of the Registrar of Civil Appeals made on 20 September 2022, the applicant lodged his written submissions[1] on 30 September 2022. As it is appropriate to do so, the Notice of Motion is determined on paper without an oral hearing.

6.  In his written submissions, he quoted passages from ST v Director of Immigration [2][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on the principle of high standards of fairness. He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility. The written submission further referred to section 37ZT of the Immigration Ordinance (Cap. 115) and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge. However, he did not explain how the legal authorities and provisions apply to or assist his case.

7.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) provides that 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.  Having regard to this court’s judgment, the applicant’s intended appeal has no merit at all. No question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

9.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

10.  By reason of the above, the Notice of Motion filed on 20 September 2022 is dismissed.