RE DAS APURBA KUMAR

CAMP 207/2019

[2020] HKCA 699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 207 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 595 OF 2017)

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J U D G M E N T

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

1.  By a judgment dated 11 June 2020 ([2020] HKCA 386), this Court (Yeung VP and Pang JA) refused to grant leave to the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 13 June 2019 in HCAL 595/2017 refusing to grant an extension of time for the applicant to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 28 February 2017 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 20 October 2015 and 13 December 2016 rejecting his non-refoulement claim on all applicable grounds.

2.  By a notice of motion dated 23 June 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

(1)  The decisions were unreasonable and unfair.  The right to life is protected under Article 2 of the Hong Kong Bill of Rights Ordinance (Cap. 383).  In practice, the right to life is mainly protected by the criminal law and it protects the applicant from extra-judicial killing that he might face if refouled.

(2)  The judges were wrong as a matter of law for not having applied the principle of irrationality in considering the Director’s decision.

(3)  The applicant will face hardship if he were to return to his home country.  The Board has significantly relied on the source of news which is not officially recognized or is simply hearsay.

3.  In compliance with the directions made by the Registrar of Civil Appeals on 24 June 2020, the applicant lodged his written submissions on 7 July 2020.  The applicant’s written submissions in support of this application are identical to his written submissions dated 2 September 2019 that were placed before this Court on appeal.  In gist, he contended that the high standard of fairness is required in determination of torture claim and the Board has acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  He cited some related case authorities but without elaborating how the said legal principles and cases may assist or be relevant to his case.  He further referred to section 37ZT of the Immigration Ordinance, Cap. 115 which provides for handling of late filing of notice of appeal but he did not explain why the section was relevant to his own case.

4.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) 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.

6.  In our judgment, nothing set out in the notice of motion and the written submissions can constitute as viable ground of appeal on the merit of his claim.  His written submissions merely repeated his earlier submissions which were duly rejected by us. He did not raise any discernible or arguable ground for disturbing our judgment. 

7.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need to seek leave under section 14AA of the High Court Ordinance (Cap. 4) (“Section 14AA”) to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the applicant in this instance because:

(a)  the present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the Court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in his appeal against the Judge’s decision of 13 June 2019.  To achieve that he would need to bring an appeal to this Court;

(b)  due to lapse of time, the applicant would need an extension of time to bring an appeal to this Court and if he had made such application, the Court would have regard to the merits of his intended appeal in deciding if extension should be granted; and

(c)  having regard to our views on the lack of merit in his intended appeal as set out at [18] and [19] of our judgment of 11 June 2020, this Court would not grant an extension of time for a futile appeal to be brought.

8.  For the aforesaid reasons and the reasons on the merit of the applicant’s appeal that we gave in our judgment of 11 June 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

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