RE KABAL SINGH

CAMP 292/2021

[2021] HKCA 1796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 292 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2766 OF 2018)

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J U D G M E N T

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

1.  On 7 October 2021, this court handed down judgment ([2021] HKCA 1464) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge To given on 28 April 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 18 October 2021, the applicant filed a Notice of Motion applying for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 1 November 2021.

3.  Having considered the applicant’s Notice of Motion 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 background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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.

6.  The Notice of Motion set out the following grounds in support of the application:

(1)  There is some error in the decision. The decision maker just relied on country of origin information (COI) and the facts that favour a dismissal of the applicant’s claim.

(2)  The judges were wrong as a matter of law for not applying he principle of irrationality to the Director of Immigration’s decision.

(3)  The actual situation is different than what is mentioned in the COI.  The immigration officer and the courts prefer to ignore the overwhelming evidence of the violence towards the minorities.

(4)  The Judge did not apply the law properly.

7.  The written submission gave an outline of the applicant’s claim, followed by extensive quotes of the provisions of the International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance, Basic Law and United Nations Convention Against Torture as well as decisions on the high standard of fairness, extended meaning of state acquiescence and Wednesbury unreasonableness.  It went on to contend that (i) high standard of fairness is required because the decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed; and (ii) at common law, there are minimum standards of procedural fairness and the decision maker is under a duty to act fairly.

8.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the Ordinance. Further, for the reasons given by the Judge, with which we agree, the applicant’s complaints about procedural unfairness, irrationality and failure to research into COI (see [9] of our judgment) have no merits.  As to the arguments in the written submission, they are substantially similar to the written submission in support of the application for extension of time (see [18] of our judgment).  As pointed out in [19] of our judgment, it has not been shown how the legal propositions relate to the applicant’s case.       

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

10.  As the statutory requirements for giving leave to appeal are not met, we accordingly dismiss the Notice of Motion.