RE HARJEET SINGH

CAMP 29/2019

[2021] HKCA 447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 29 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 46/2018)

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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 26 July 2019, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 19 October 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 decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application, 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 dated 28 May 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“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 on the 5^th Nov. 2019 refusing my application for judicial review.

The learned judges were wrong as a matter of the law for not having applied the principle of procedural unfairness to the decision of the Director hereby the Director was required to give reasons justifying the decision”

4.  In the affirmation dated 28 May 2020, the applicant deposed that:

“I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for court of appeal.

I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal out of time.”

5.  Because the applicant failed to comply with the directions made by the Registrar of Civil Appeals on 1 June 2020, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

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.  Although this application was made some nine months out of time, no explanation for the substantial delay was given.  The application could thus be dismissed on this ground alone.  Nonetheless, we shall also deal with the merits of the application.

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.  For the grounds raised in the Notice of Motion, the applicant has not provided sufficient particulars of the alleged irrationality and procedural unfairness.  For the grounds raised in the affirmation, those grounds are vague and lack particulars.  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 dated 28 May 2020 is dismissed.