RE NAMGEL LAMA

CAMP 293/2021

[2022] HKCA 184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 293 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1346 OF 2018)

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J U D G M E N T

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

1.  On 13 December 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au and Chow JJA)  judgment of 9 December 2021 (“the Judgment”)  ([2021] HKCA 1848). In the Judgment, we dismissed the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 15 January 2020 refusing to grant leave to the applicant to apply for judicial review ([2020] HKCFI 123)  (“the Leave Decision”).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  In his Notice of Motion, the applicant stated:

“1. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favor on rejecting my claim.

2. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.” (sic)

5.  The applicant lodged his written submissions on 28 December 2021.  In his written submissions, he alleged that there were some grounds which were ignored by the Director of Immigration, the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  and the Deputy Judge.  He then cited provisions from the International Covenant on Civil and Political Rights, the Hong Kong Bill of Rights Ordinance, Cap 383, the Basic Law and the United Nations Convention against Torture and various legal authorities regarding Wednesbury unreasonableness and procedural fairness without specifying or elaborating how those provisions or authorities were relevant to his case.  He also contended that in the present case any delay was not due to him or his legal representatives as it took time for the Legal Aid Department (“LAD”)  to instruct solicitor and counsel, and that time was needed to obtain relevant documentation from the Duty Lawyer Service and the Security Bureau.  He then alleged that the Board failed to take into account the country conditions of his country of origin.

6.  In our view, the applicant’s intended appeal has no merit at all.  None of the matters raised in his Notice of Motion or written submissions has identified any error in the Judgment with specific particulars or elaboration.  The matters raised in his Notice of Motion and written submissions are all general, bare and vague allegations unsupported by specific particulars or evidence.  Clearly, they do not constitute proper grounds of appeal.

7.  In any event, his contentions that the delay was a result of the time taken by the LAD to instruct lawyers are wholly devoid of merit and are misplaced.  The applicant was not legally represented in the proceedings before this Court and the Court below.  Insofar as his delay in applying for leave to appeal against the Leave Decision was concerned, it had always been the applicant’s own case that the documents got lost in the post, which was not a cogent explanation as stated at [18] of the Judgment.  Furthermore, the Board had already considered the country conditions of the applicant in making its decision.  As stated at [22] of the Judgment, we have reviewed both the Board’s Decision and the Leave Decision and the reasons the Board and the Deputy Judge gave for their decisions.  We agree with the Deputy Judge that there is no ground warranting any interference with the Board’s Decision by the Court by way of judicial review.  The applicant did not identify any error in the Judgment.

8.  Further, even taking the applicant’s submissions at their highest, his contentions are still fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has also failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the Notice of Motion filed on 13 December 2021 is dismissed.