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

CAMP 32/2022

[2023] HKCA 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 32 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2963 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 2 August 2022) for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan Ag CJHC and Cheung JA) handed down on 24 June 2022 ([2022] HKCA 880). The Court of Appeal refused to grant leave to appeal out of time against the decision of Deputy High Court Judge P Li dated 19 August 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 had directed that the applicant shall lodge written submissions on or before 16 August 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction.

3.  The applicant lodged his written submissions on 12 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 a national of India. He is 30 years old. He came to Hong Kong as a visitor on 1 January 2013 and was arrested by the police for overstaying on 18 October 2013. He raised his non-refoulement claim the day following his arrest on the basis that he would be harmed or killed by a rival political party, Akali Dal Party (“ADP”).

5.  Deputy High Court Judge P Li concluded that the applicant failed to show any reasonable prospect of success in the intended judicial review and refused the leave application on 19 August 2021.

6.  The applicant filed an application for extension of time to appeal against the said decision, which was dismissed by the judge on 14 January 2022[2].

7.  On 24 January 2022, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 24 June 2022, it was held that there was no prospect of success in the applicant’s intended appeal.

Grounds of appeal

8.  The applicant in his Notice of Motion dated 2 August 2022 (filed out of time) stated that he was not satisfied with the result of his non-refoulement claim and therefore wants to go to the Court of Final Appeal.

9.  In his written submissions he further expanded:

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

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

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

Analysis and disposition

10.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

11.  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.

12.  The applicant was almost 2 weeks late in filing his Notice of Motion. He did not provide any explanation for the delay, and in his affirmation merely stated, “Please extend time and grant my leave.” This does not constitute any good grounds for the court to grant extension of time for the applicant to file his Notice of Motion.

13.  In any event, the Court of Appeal has sufficiently dealt with his grounds in the decision dated 24 June 2022. The applicant 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).

14.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 2 August 2022.