GACO NOMER BERGONIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 383/2020

[2021] HKCA 749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 383 OF 2020

(ON APPEAL FROM HCAL NO 1855 OF 2018)

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BETWEEN

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JUDGMENT

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Hon B Chu J (giving the Judgment of the Court):

1.  On 29 January 2021, this Court handed down our judgment^[1] (the “Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung given on 4 August 2020 refusing leave to apply for judicial review. The applicant had sought judicial review of the decision of the Torture Claims Appeal Board dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

3.  On 7 April 2021, the applicant filed a notice of motion to apply for leave to appeal out of time against the Judgment to the Court of Final Appeal and further filed an affirmation to support seeking leave to file the notice of motion out of time.  He lodged written submissions to support his application on 20 April 2021.

4.  Having considered the applicant’s notice of motion, his affirmation and his written submissions, we see no reason to depart from the usual practice of determining applications of this kind on paper without an oral hearing.

5.  The only reason the applicant gave in his affirmation was that he did not receive the Judgment within the time stipulated for appeal.  At the hearing on 26 January 2021, the applicant was informed that the Judgment would be handed down on 29 January 2021 in the afternoon and if he did not come to collect the same, it would be posted to him at his contact address.  At the hearing, this Court had confirmed with the applicant his contact address.  A copy of the Judgment was posted to him on 29 January 2021 at his confirmed address and it was not returned through post.  There was no evidence produced by the applicant to support his allegation that he did not receive the Judgement within the time stipulated for appeal.  There were no valid reasons for his late filing of the notice of motion.  

6.  The applicant stated in his typed notice of motion that there was “some error in law” in the Judgment and in so far as we could make out, that the Court just relied on the COL Information and his previous facts and that actual situation was different from what was mentioned in the COL Information and that the Court ignored the overwhelming evidence of violence towards minorities, and that the Judgment “betrayed bias and formula approach”.  These are all bare assertions made by the applicant without any particulars as to how they relate to the applicant’s case.

7.  In the applicant’s written submissions, he cited case authorities and judicial review principles without focusing on any particulars of the circumstances of his case, or identifying any error of law in the Judgment.  

8.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), 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.  Here, the applicant’s notice of motion and written submissions do not properly identify any error in our judgment, let alone any question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” ground in section 22(1)(b) either.  The statutory criteria of obtaining leave to appeal to the Court of Final Appeal are not met. 

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal out of time and dismiss his notice of motion.