RE JARNAIL SINGH

CACV 128/2018

[2019] HKCA 707

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 128 OF 2018

(ON APPEAL FROM HCAL 446/2017)

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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 2 May 2018, the applicant appealed against the decision of Deputy High Court Judge Woodcock (“the judge”) on 23 April 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 decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  On 27 June 2018, the court directed that unless the applicant lodged with the court 2 sets of appeal bundles by no later than on 25 July 2018, the appeal should stand dismissed.  No appeal bundle was ever lodged and the appeal was thus dismissed.

3.  The applicant subsequently applied, by a Notice of Motion filed on 25 March 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“there is some error in law in my decision. Decision maker just relied on COI Information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI Information. The Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.  In the affirmation dated 25 March 2019, the applicant stated that “I would like to appeal by lodging the motion for appeal.  The lower court has only relied on unreliable and biased country of origin information”.

5.  In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 17 April 2019.  In the written submission, the applicant referred to a number of cases on high standard of fairness without explaining how they are relevant to the present application.

6.  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 the papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion and written submission.

7.  If an appellant fails to discharge his duty in preparing the appeal bundles, his appeal is liable to be struck out for want of prosecution (Ahmed Syed Rafiq [2018] HKCA 178 at [12]).

8.  The applicant ought to have applied for relief from the consequence flowing from the failure to comply with an unless order under Order 2 Rule 5 ([13] of Ahmed Syed Rafiq).  He has not given any reason as to why his appeal should not be struck out for want of prosecution. He has not indicated any intention to fulfil the duty of preparing the appeal bundles.  The present application for leave to appeal is clearly without merit.

9.  We are also satisfied that the matters stated by the applicant in the 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 the Notice of Motion and written submission.

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 filed on 25 March 2019 is dismissed.