RE BALBIR SINGH

CACV 129/2019

[2022] HKCA 31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 129 OF 2019

(ON APPEAL FROM HCAL 416/2018)

____________________

____________________

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1.  On 10 September 2019, this court (Lam VP, Barma JA and Au JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 8 March 2019 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 decisions 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 filed on 6 August 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“The [Director] and the [Board] rejected my non refoulement claim. The High Court and the Court of Appeal refused my leave to apply for judicial review. I want go to the Court of Final Appeal.”

4.  In the affirmation filed on 6 August 2021, the applicant deposed that:

“Affirmation for apply of notice of motion but out of scheduled time. As I had plane to return home. My problem not solve, I change my mind.”

5.  The applicant lodged a written submission in support of the application on 20 August 2021.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion and explained why it is unsafe for him to return.

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.  The matters stated in the affirmation are not valid explanations for the delay.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the application.  We nonetheless go on to consider 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.  Neither the Notice of Motion, affirmation nor the written submissions identify any supposed error in our judgment and they raise no ground that is 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 6 August 2021 is dismissed.