BALJINDER SINGH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 64/2022

[2023] HKCA 165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 64 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1895 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion (dated 8 August 2022) for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Cheung JA) handed down on 29 July 2022 ([2022] HKCA 1103). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dated 16 December 2021[1] refusing to grant leave for the applicant to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to Practice Direction 2.1, the Registrar of Civil Appeals directed that the applicant shall lodge written submissions on or before 22 August 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing unless the Court directed otherwise.

3.  The applicant lodged his written submissions on 22 August 2022. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

4.  The applicant is an Indian national. He entered Hong Kong illegally on 12 December 2015 and was arrested by the police the following day. He lodged his non-refoulement claim on 15 December 2015 on the basis that he will be ill-treated or killed by his creditor and his men if he returns to India.

5.  Deputy High Court Judge Lung concluded that the applicant failed to show any reasonable prospect of success in the intended judicial review and dismissed the leave application on 16 December 2021.

6.  The applicant filed an application for extension of time to appeal against the said decision, which was dismissed by Deputy High Court Judge Lung on 28 January 2022.

7.  On 21 February 2022, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 29 July 2022, the Court held that there was no prospect of success, let alone real prospect of success, in the applicant’s intended appeal.

Grounds of appeal

8.  The applicant in his Notice of Motion dated 8 August 2022 stated that he was not satisfied with the result of his non-refoulement claim and therefore wants to go the Court of Final Appeal. In his written submissions he further expanded:

(1)  the Director of Immigration did not properly consider his application;

(2)  if the applicant returns to India, the safety of his life will be in jeopardy; and

(3)  the issue he faces, as with other asylum seekers, is of great public interest.

Analysis and disposition

9.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

10.  The Court of Appeal has sufficiently dealt with the applicant’s grounds in the decision dated 29 July 2022. The applicant has failed to demonstrate that the Court of Appeal was wrong in dismissing his application. Moreover, he has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion dated and filed on 8 August 2022.