RE MANDAIR AMANDEEP SINGH

CACV 328/2018

[2019] HKCA 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 328 OF 2018

(ON APPEAL FROM HCAL 1130/2017)

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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 19 October 2018, this court (Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 9 July 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 appeal, 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 7 November 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

“1. I did not know failure to lodge skeleton submissions would cost me an appeal hearing. I specifically requested for one. I suppose I relied too much on my friends as no translation was given to me

2. Judges were procedurally unfair because there was a significance in the part where I could not obtain evidence during my imprisonment.  This is of particular importance as the Board did not find me a credible witness.”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application dated 18 November 2018 on 21 November 2018.  In his written submission, the applicant reiterated the matters raised in the notice of motion.

5.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion and written submission.

6.  The matters stated by the applicant in his notice of motion and written submission 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 in his notice of motion and his written submission.  We have given reasons for vacating the appeal hearing at [2] of our judgment.  As for the applicant’s complaint against the Board, as stated in [15] of our judgment, judicial review is not an avenue for revisiting the assessment of the Board in the hope that the court may consider the matter afresh even in the absence of any legal error.  Having considered the notice of motion and the written submission, we can find nothing amiss in our judgment.

7.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

8.  For these reasons, the notice of motion dated 7 November 2018 is dismissed.